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FEDERAL INJUNCTIONS 


HEARINGS 

BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON THE 

JUDICIARY, UNITED STATES SENATE 

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ON THE BILL 


S. 3724 

A BILL REGULATING INJUNCTIONS AND THE 
PRACTICE OF THE DISTRICT AND CIRCUIT 
COURTS OF THE UNITED STATES 


9 


WASHINGTON 

GOVERNMENT PRINTING OFFICE 
1910 


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D. OF D. 

MAR 1 1910 




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HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON 
THE JUDICIARY, UNITED STATES SENATE, ON THE BILL S. 
3724, REGULATING INJUNCTIONS, ETC. 


FEDERAL INJUNCTIONS. 


Committee on the Judiciary, 

United States Senate, 

Thursday, January 27, 1910. 

The subcommittee met at 3 p. m. 

Present, Senator Overman. 

The following is the bill forming the subject of the hearings: 

[S. 3724, Sixty-first Congress, second session.] 

A BILL Regulating injunctions and the practice of the district and circuit courts of 
the United States. 

Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, That no temporary 
. or interlocutory injunction or temporary restraining order, or decree 
suspending or restraining the enforcement, operation, or execution 
of any statute of any State by restraining the action of any officer of 
such State in the enforcement or execution of such statute shall be 
issued or granted by any circuit or district court of the United States 
or by any judge or justice thereof upon the ground of unconstitu¬ 
tionality of the statute, unless the application for the same shall be 
presented to a circuit judge and shall be heard and determined, upon 
issue made and proof taken by affidavit or otherwise, by three judges, 
of whom two shall be circuit judges, and the third may be either a 
circuit or a district judge, and unless a majority of said three judges 
shall concur in granting such application. Whenever such applica¬ 
tion, as aforesaid, is presented to a circuit judge he shall immediately 
call to his assistance, to hear and determine the application, one 
circuit judge and one district judge or another circuit judge. Said 
application shall not be beard and determined until five days’ notice 
or the hearing has been given to the governor and attorney-general 
of the State and such other persons as may be defendants in the suit: 
Provided, That if a majority of said judges are of the opinion, at the 
time notice of said hearing is given as aforesaid, that irreparable loss 
and damage would result to the applicant unless a temporary restrain¬ 
ing order, pending the period of the required notice, is granted, a 

3 




4 


FEDERAL INJUNCTIONS. 


majority of said judges may grant such order, but the same shall 
only remain in force until the hearing and determination of the ap¬ 
plication, upon due notice as aforesaid, has taken place. That an 
appeal may be taken directly to the Supreme Court of the United 
States from any order or decree granting or denying, after notice 
and hearing, a temporary or interlocutory injunction or restraining 
order in such case, and the hearing of such appeal shall take prece¬ 
dence over all other cases except those of a similar character and 
criminal cases. 

ARGUMENT OF ALFRED P. THOM, ESQ., OF WASHINGTON, D. C. 

Mr. Thom. Before proceeding to discuss the special features of this 
injunction bill I should like to have the opportunity to advert to some of 
the considerations which seem to me to affect the wisdom, from a 
national standpoint, of any legislation whatever on this subject. It 
seems to me that there are certain fundamental objections to any 
legislation of this character. 

The underlying theory of such legislation as is proposed in this bill 
must be that the National Government is, in a sense, foreign to the 
States. The bill proceeds upon the theory that it is necessary to 
have some special restrictions put upon the national power when it 
goes to dealing with these state questions. For example, a single 
federal judge can issue an interlocutory injunction against and can 
declare unconstitutional an act of Congress if contrary' to the Con¬ 
stitution of the United States, and a single state judge can issue an 
interlocutory injunction against and can declare unconstitutional the 
act of a State if contrary either to the constitution of the State or 
to the Constitution of the United States. 

Senator Overman. There is no conflict between a national judge 
issuing an injunction and a state judge issuing an injunction. There 
can be none. I would like to hear you as to any conflict between 
the two jurisdictions. 

Mr. Thom. That is not what I am trying to show. 

Senator Overman. Pardon me for the interruption. Proceed in 
your own way. 

Mr. Thom. What I am trying to show to your honor is that this 
is a discrimination against the National Government in favor of the 
state government, and against the national court in favor of the 
state court. 

As bearing out that contention I call your honor’s attention to 
this; a single federal judge can enjoin and declare unconstitutional 
an act of Congress, a single state judge can enjoin and declare uncon¬ 
stitutional an act of a State, as contrary to the Constitution either of 
the State or of the United States; but when it comes to a federal 
judge enjoining by interlocutory order an act of a State as contrary 
to the Constitution of the United States—a thing that a single state 
judge can do—it is proposed in this bill that that shall not be done 
except by three federal judges. 

On its face that is a discrimination against the national judiciary 
in favor of the state judiciary. It puts a restriction upon the power 
of a national judge that is not upon the power of a state judge. 

Now, what is the reason of this? What has forced any mind to the 
conclusion that it is proper? It can only be justified by the idea that 


FEDERAL INJUNCTIONS. 


5 


the National Government is related to the people of the State and 
to their affairs in a different way from the way m which a state gov¬ 
ernment is related to the people of a State and their affairs. In other 
words, as I started out to say, it is based upon the thought that in a 
sense the Federal Government is a foreign government as respects 
the people of the State and their laws. 

Now, is it a wise thing, if your honor please, for Congress to do—to 
give way to such an idea for a moment? The Constitution of the 
United States declares that the Constitution of the Union and the 
laws made in pursuance thereof shall be the supreme law of the land, 
anything in the laws of a State to the contrary notwithstanding. 

It seems to me that, in all the controversies that have given rise to 
this matter, there has been a great confusion of thought in respect to 
what constitutes the law of a State. 

Your honor is a Senator form North Carolina. I was counsel in a 
case which we botji have in mind, in North Carolina; and you are 
aware that the opponents of the jurisdiction of the federal court in 
that case were constantly talking about the obligation upon the 
governor of the State to enforce the laws of the State. You remember 
publications in which the governor of the State declared that it was 
his sworn duty to enforce the laws of the State, and you remember, 
further, that he interpreted the laws of the State to be those written 
upon the statute books of the State. 

It seems to me that such a view is most hurtful and pernicious, if 
this dual system of government is to continue. It is manifest to any 
lawyer that not only are the laws of a State not necessarily all to be 
found in the statute books of the State, but that, if those statutes are 
contrary to the Constitution of the United States, they are not the 
law at all, but the Constitution is the law of the State, and the oath of 
the executive refers to his carrying out and making effective the Con¬ 
stitution of the United States, not the void law of the particular 
State of which he may be the executive. 

Now, can Congress with any wisdom, in dealing with a subject so 
large as this, touching, as it does, the real relationship between the 
States and the Nation, and affecting the very integrity of our insti¬ 
tutions—can it, I say, with any wisdom give color to the thought 
that the judiciary of the United States, or that the Constitution of 
the United States, is in any sense foreign to the States? Can it 
permit a discrimination against the national judiciary in favor of 
the state judiciary ? Can it, with any regard for the continuance of a 
true conception on the part of our people of the proper relationship 
of our Constitution and laws, write into the national statute book a 
provision requiring that three judges of the Union are required to 
do what one judge of a State may do? 

I have been for many years impressed with what was said by the 
Supreme Court of the United States, speaking through Justice 
Bradley in the Siebold case, in regard to the true relation of the States 
to the Union, and in regard to the misconception which permitted 
a jealousy to grow up on the part of the people of a State against the 
just powers of the Union. 

I quote from what Judge Bradley said in that case: 

“The greatest difficulty in coming to a just conclusion arises from 
mistaken notions with regard to the relations which subsist between 
the state and national governments. It seems to be often over- 


6 


FEDERAL INJUNCTIONS. 


looked that .a National Constitution has been adopted in this country, 
establishing a real government therein, operating upon persons and 
territory and things, and which, moreover is, or should be, as dear 
to every American citizen as his state government is. Whenever 
the true conception of the nature of this Government is once con¬ 
ceded, no real difficulty will arise in the just interpretation of its 
powers. But if we allow ourselves to regard it as a hostile organiza¬ 
tion, opposed to the proper sovereignty and dignity of the state 
governments, we shall continue to be vexed with difficulties as to 
its jurisdiction and authority. No greater jealousy is required to be 
exercised toward ‘this Government in reference to the preservation 
of our liberties than is proper to be exercised toward the state govern¬ 
ments. 

* * * * * * * 

‘‘This power to enforce its laws and to execute its functions in all 
places does not derogate from the power of the state to execute its 
laws at the same time and in the same place. The one does not 
exclude the other, except where both can not be executed at the 
same time. In that case the words of the Constitution itself show 
which is to yield. ‘This Constitution, and all laws which shall be 
made in pursuance thereof, * * * shall be the supreme law of 

the land/ 

* * * * * * * 

“If we indulge in such impracticable views as these, and keep on 
refining and re-refining, we shall drive the National Government out 
of the United States and relegate it to the District of Columbia or 
perhaps to some foreign soil.” (Ex parte Siebold, 100 U. S., 393.) 

Sitting here as a part of the National Government, clothed with the 
duty to see that the just balance of powers between the State and the 
nation is preserved—having upon you and your associates the high 
duty of maintaining the proposition that the government of these 
United States is not foreign to the States, but is, or ought to be, as dear 
to them as the governments of their States—can Congress in wisdom 
adopt any law the undertying motive of which is distrust by the States 
of the just power of the National Government and the necessary effect 
of which is to establish a discrimination to the disadvantage of the 
National Government, in favor of the State, and to the disadvantage 
of the national judiciary in favor of the State judiciary? 

In other words, I wish at the outset of this discussion to bring to 
your attention the fundamental consideration that the very concep¬ 
tion underlying this bill strikes at a just view of the relations of the 
state and national governments, and is born of the thought that you 
must put restrictions upon the National Government, where a State 
is concerned, in order to protect the States from tyranny and abuse. 

If Congress says that, what does it invite the people of the United 
States to think in regard to their National Government? If that view 
is indorsed by Congress in its legislation—if it gives way for one 
moment to the thought that the National Government is foreign to 
the State, and is tyrannical, and must have restrictions put upon it 
in order to prevent abuse, what will be the conclusion of the people of 
the United States who are accustomed to follow the leadership of 
Congress, and what will then become of their conception of the rela¬ 
tions of their National Government to them? 


FEDERAL INJUNCTIONS. 


7 


The foregoing is the first fundamental objection to which I invite 
your honor's attention. I now invite your attention to a second. 

The proposed statute is intended to provide only for a case where 
a citizen or a party to a cause, helpless because in the minority, de¬ 
sires to claim the protection of the Constitution of the United States 
as to his life, his liberty, or his property rights. 

In any fair system of government, ought it to be hard or easy for 
one of the helpless minority to secure the protection of the constitu¬ 
tion and laws of his country? 

This bill proposes to make it difficult. As difficult as it is in the 
circuit to which your honor and I both belong, as I will illustrate in a 
moment, in some sections of the United States the provisions of this 
bill would, as I am told, make the securing of constitutional protec¬ 
tion absolutely impossible. Let us take the circuit to which you and 
I belong—the fourth circuit. There are in the fourth circuit two 
circuit judges now. There have been only two in all its history. 
One of those circuit judges, as your honor well knows, has been in 
bad health, or was in bad health for over one year, and was not avail¬ 
able either to take action on an injunction or for the trial of cases in 
court. That is liable to happen at any time; and yet, if two circuit 
judges are to be necessary for an interlocutory injunction, what 
would happen to a citizen, or to those parties not citizens, whose 
property rights are involved, when there is only one circuit judge 
available ? 

I am told by Senator Long—and I may say that he will no doubt 
discuss that point more fully than I am doing, and I refer to it only to 
illustrate what I am now saying—that in his section of the country it 
will take a trip of 2,000 miles to get to a circuit judge, and after such a 
journey he can get to only one. 

But even if an applicant could got to all of them, when'we con¬ 
sider that it is made necessary to have the three together, that there 
may be a great number of litigants demanding their attention, that 
they may have some obligation to the United States in the trial of 
matters given precedence under the laws, such as matters arising 
under the Sherman Act, and that they may be in the actual trial of 
the case—in other words, that they may be in the discharge at the 
time of some actual and paramount duty which they can not leave— 
when we consider all these things, we see how difficult it is made by 
this bill for a suitor to obtain the protection of the constitution of 
his country. 

Let me illustrate what this means: Your honor recollects very well, 
I presume, the terms of a statute which, reducing to an arbitrary 
amount the charges of a carrier, made it a crime for any individual in 
the employment of the carrier to sell a ticket at any rate in excess of 
the one fixed by the statute. To the carrier there were property 
rights involved; to every employee of the carrier there were rights 
of liberty involved. 

Your honor will also recollect how an employee of that carrier, 
selling tickets under the protection of an order of the United States 
court, at an amount fixed and authorized by that order, was put in 
jail and sentenced to servitude. 

Senator Overman. If there had been two judges to pass on the 
constitutionality of that act, do you think that that would occur? 


8 


FEDERAL INJUNCTIONS. 


Mr. Thom. If you will permit me to pursue my point, I will come 
to your question later. 

Senator Overman. Pardon me for interrupting. 

Mr. Thom. The only way to protect that man in his rights as a 
citizen, the only way to preserve that company from the loss of its 
property, was by an order of a court. 

Ought it, under those circumstances, to be hard or easy to get that 
order? Is there any national interest that would be promoted by 
making it hard? Is there any interest of justice that would not be 
violated if it were not reasonably easy ? 

Now suppose that in that condition of affairs it had been necessary 
to convene a court that was inaccessible, that was engaged about 
other matters, that must consist of three judges, and could not, or 
would not, come together, would it have been possible to have meted 
out protection to the liberty of the army of employees whose liberties 
were threatened, and to have protected the rights that, according to 
the decision of the Supreme Court later made in that same case, were 
being taken away by that unconstitutional statute? 

I refer now merely to this feature of the situation so as to get my 
thoughts together on that subject. I will come a little later to the 
arguments which I shall present in respect to the suggestion involved 
in your question. 

Suppose it is made easy, I mean reasonably easy. Suppose it is 
left as it is. In other words, suppose we leave in the single national 
judge, the same power and the same jurisdiction that is placed by 
the respective States in single judges elected or appointed by them. 
Then, what is the situation? 

If the complainant is right in his contention, all he can get is what 
the constitution of his country gives him; he can not get any more, 
even if he is right. If the injunction can not be obtained by him 
because of obstructions in the law, what is his situation? The situa¬ 
tion as to the individual is that he is put in prison. The situation 
as to the property owner is that he irrevocably loses his property 
until there is a final decision of his case and a final injunction. If 
it is made so difficult that he can not obtain an interlocutory injunc¬ 
tion or a temporary restraining order, who is going to pay the prop¬ 
erty owner for the loss of his property? The national Constitution 
says that his property shall not be taken away from him without 
just compensation. But, by reason of having made access to the 
court difficult, his property has been taken away from him for the 
period between the time the unconstitutional law goes into effect 
and the final hearing of the case. Where does he get back the con¬ 
stitutional rights which have been denied him by the difficulties 
that have been thrown in his way by the law? Is there any way of 
restoring to the individual who has been put in prison the reputa¬ 
tion of never having violated the law? Is there any way of taking 
away from him the time that he has spent in imprisonment? Is 
there any way of giving back to the man who has invested his money 
in the property the legitimate use of it during the time that that 
legitimate use has been denied by an unconstitutional statute? Is 
there any way of dealing with him in a way to give him protection— 
to give him the benefit of the Constitution, which is the supreme 
law of this land ? 


FEDERAL INJUNCTIONS. 


9 


But, on the other hand, suppose he were to get an injunction that 
should be finally dissolved as having been wrongfully issued, has 
there not been devised a way, by an easy evolution of well-under¬ 
stood chancery practice, of giving back" to the people who have 
suffered what they have wrongfully been required to pay? If it is 
said, on account of the large number of these people, on account of 
the smallness of the amounts involved in each case, that that is not 
entirely adequate protection to them, yet compare that protection 
to the individual that has risked nothing with the absolute lack of 
protection to the people who have invested in and have established 
the transportation facilities and to the individual who has risked his 
liberty in order to carry out his obligations and to exercise his con¬ 
stitutional rights. 

The bond is at least some protection to the man who has been 
overcharged by a railroad, if it should be determined that the injunc¬ 
tion was improperly awarded, whereas there is no protection for the 
complainant in the event he is right in his contention and that the 
State has unjustly attempted to take away from him his property. 

But there is another consideration, it seems to me, which ought to be 
potential in this connection. Here is a property owner, or an indi¬ 
vidual in the employment of a property owner, that has been enjoying 
certain rights in respect of that property from time immemorial. 
The property has been created at someDody’s expense. The property 
has been operated likewise at private expense. Now the public 
undertake to take away a part of the use of it, on the ground that, in 
the legislative mind, the compensation for it is excessive. 

It is a use that has been acquiesced in for years, we will say. It is 
a matter on which there has been and always is ground for legitimate 
difference of opinion. Now the State asserts a right to invade that 
property right. Is it a hardship on a State under those circumstances, 
when it is not in a position to make good any loss that an erroneous 
conception may bring about; is it a hardship that before it shall 
take this property a reasonable time shall be permitted to make a 
judicial inquiry into the controversy as to whether or not it is a legit¬ 
imate invasion of private rights. 

For the public to oppress the individual is easy. For the public 
to invade property rights is easy. There is no quicker way of firing 
the popular mind than to inveigh against property rights. Now is it 
too much to ask, in a just system of law, that before that property 
right is invaded a reasonable time shall be permitted to make a just 
and fair inquiry into the merits of the respective contentions? 

That reasonable time is during the progress of the case. If at the 
end of a case, properly expedited by a conscientious judge, it is deter¬ 
mined that the State is right, has the State been subjected to any 
improper hardship in being required to go through that judicial 
inquiry to see whether or not its ex parte view of the matter is right, 
or the ex parte view of the person whose property is taken is right. 

In other words, is there any necessity of engrafting upon our laws 
a means of enforcing the ex parte view of the State or the public, in 
respect to somebody else’s property, without permitting a fair oppor¬ 
tunity for an examination of the claim of power? 

The whole theory on which public sentiment has been stirred up in 
respect to this matter is that it is unpatriotic and improper on the 


10 


FEDERAL INJUNCTIONS. 


part of the property owner to deny the right of the State to take his 
property at once without inquiry. The property owner becomes un¬ 
popular because he will not permit, without an inquiry before an 
established legal tribunal, the State to take his property at once. Is 
that a fair and just conception to be encouraged by a system of law? 
Ought that idea to be crystallized into the statutes ? And if it should 
not be crystallized into the statutes ought not the minority man, the 
man against whom the majority are attempting to exercise this power, 
the helpless man, ought he to have his way to the ascertainment and 
declaration of his constitutional rights made easy or difficult ? 

The third consideration of a general nature against this bill is that 
it is in reality, while not, of course, so intended, a reflection upon a 
very honorable department of the National Government—upon the 
district and the circuit courts. As I have said, you take from them 
the power that you concede to the judge of the state court. You say 
that you can not trust the national judiciary to do a thing unless three 
judges concur which one judge of a State is permitted to do. 

Is there anything in the history of the national judiciary which 
makes that proper? Is there anything in the history of our juris¬ 
prudence which justifies that view? What has been the fate of in¬ 
junctions that have been granted by the single federal judge? Has 
the power which the single federal judge exercised been discred¬ 
ited by judicial inquiry, or has it been upheld? What do the records 
of the Supreme Court show in reference to the injunctions that have 
been granted by the single federal judge? Without going into the 
details, which I shall leave to others, I say that, with the exception 
of the Consolidated Gas case and of the Knoxville Water case, there 
are no cases that I remember in which the exercise of the j urisdiction 
in these special matters of rates, even a single judge, has not 
been indorsed and upheld upon final inquiry in the Supreme Court 
of the United States. 

Whether I am accurate or not in my recollection of the decisions 
(and I have had no time to make an exhaustive examination), I 
am sure I am not mistaken when I say that there is nothing in the 
history of these injunctions which indicates an abuse of power by 
the single federal judge. 

Now let us look at what, on the contrary, has been the record of 
the States in respect to the invasion of rights of persons secured by 
the Constitution of the United States. 

In the first place the States have asserted a right to regulate inter¬ 
state rates—decided against in the Wabash case in 118 United States. 

Suppose that a railroad company had asserted such an erroneous 
proposition of power as that. How great a misconception of its 
purpose, how great a criticism of its motives, would have gone out! 
And yet, here was a State earnestly, vigorously, passionately insist¬ 
ing that it had a right to invade the constitutional province of the 
United States and regulate the interstate rates of a carrier. That is 
one instance of where the States have attempted to invade the con¬ 
stitutional rights of the carrier. 

The States, in the same instance, and in many others, have asserted 
and have attempted to sustain the proposition that, by the mere 
vote of the legislative branch of the Government, they can take away 
the property rights of a person, that the matter of the regulating of 
charges for the use of property is a legislative matter, and that there 


FEDERAL INJUNCTIONS. 11 

was no constitutional provision which would protect the carrier in 
the right to make a reasonable charge for the use of his property. 
States have attempted this, and it was decided against in the case I 
have cited, the Wabash case in 118 United States. 

As involved in that proposition, the State has denied the right of a 
property owner to the reasonable use of his property, tb have the ques¬ 
tion judicially determined. In other words, they have claimed that 
their power to confiscate by legislative action was without any restric¬ 
tion, and the property owner was without any protection, although 
the Constitution of the United States might be, in fact, violated; 
they have claimed that there was no remedy. And that was decided 
against in the case I have cited and in other cases. 

Failing in the effort to prevent a judicial review directly, the States 
have attempted to prevent a judicial review, and to nullify the pro¬ 
tection of the Constitution of the United States, by inflicting enor¬ 
mous penalties upon the mere application to a court for constitu¬ 
tional protection. So much so, that if there were a mistake on the 
part or the railroad, or the property owner, in respect to the simple 
proposition upon which men may have different views—that is, as to 
what was a just use of its property—as to proper rates, he should be 
destroyed by the millions of dollars of penalties to which he would be 
subjected, and thereby deterred from asserting his constitutional 
right to protection. 

This was decided against in the Minnesota arid North Carolina case, 
in 209 United States Reports. 

Again, the States have attempted to take advantage of a federal 
statute to enable them to invade the constitutional rights of a property 
owner. 

Section 720 of the Revised Statutes of the United States provides 
that no injunction shall be issued by a court of the United States to 
stay any proceedings in a state court. My State, Virginia, attempted 
to escape the restraining arm of the Constitution of the United States 
by declaring the rate-making body a court, and thus attempted to put 
it beyond the reach of the constituted tribunal for enforcing the con¬ 
stitutional rights under the Constitution of the United States. 

This was decided against in the Virginia Passenger Rate case 

(211 U. S.). 

In many instances the States have passed laws confiscating the 
property of carriers, as in the Reagan case (154 U. S.) and in the 
Smythe v. Ames case (169 U. S.). 

One State that I have in mind has declared that it shall be the 
duty of the carrier to carry forward the internal commerce of that 
State—freight commerce, I mean—at a rate of speed which is about 
double the rate that the commerce of the United States moves at. 
That State requires that the carrier shall carry forward the State’s 
internal freight commerce at least 50 miles a day instead of the average 
rate of movement of freight commerce of 24 or 25 miles a day. In 
other words, it has declared that a preferential movement shall be 
given to the traffic of that State over the traffic of its sister States 
and over interstate traffic. 

Another State has declared that if a car is not furnished for the 
commerce of that State a certain time after demand there shall be 
a penalty of $25 a day. A sister State says that for a similar failure 
within its territoral jurisdiction there shall be a' penalty of $1 a 


12 


FEDERAL INJUNCTIONS. 


day. The rolling stock of the company, although adequate, may, 
by the necessities of commerce, have been carried to some remote 
part of the line, in other and distant States, and it may be impossible 
to furnish both of those States with all that is demanded, but in 
one State there is a fine of $25 a day and in the other a fine of $1 
a day. In case’ of incapacity to comply with the demands of both, 
the demand backed by the highest penalty naturally would be given 
preference. In other words, one State is demanding a preference 
over the commerce of the other State and over interstate commerce. 

Some of the States have passed laws, forfeiting the right of a 
company to remain in the State, if it brings its suits in the United 
States court, or if it removes a case to the United States court. 

These are some of the things that the States have tried to do. 
They are some of the violations of the Constitution of the United 
States that the States have attempted. Compare what has been 
attempted in the denial of constitutional protection to these rights 
of property by actions of the States with the honorable record, 
shown by the reports of the Supreme Court of the United States, 
of the single judges, district and circuit, of the United States courts. 
Where can the student of jurisprudence point to the wrong that 
has been inflicted by these judges in the awarding and in the use of 
the process of injunction, and how can a student of jurisprudence 
avoid the conclusion that there is not only an imaginary but a real 
wrong to be remedied, indicated by the recent history of invasions of 
sacred constitutional rights by action of the States? 

Now, under these circumstances, has a situation arisen where the 
great power of national legislation should be directed against the 
honorable record of the federal judiciary, in order to make it difficult 
for the people of these United States to obtain protection for their 
constitutional rights? 

Another fundamental objection to legislation on this subject seems 
to me to be found in the special hardships, that would be visited 
upon railroad companies, if it were made difficult or impossible for 
them to prevent the going into effect of unconstitutional laws. 
Most of these laws relate to rates—to charges for the use of property. 

Let us stop for a moment to consider what is necessary to one of 
these great public-service corporations in adjusting themselves to a 
new regulation in respect to their charges. Can they do it at a 
moment’s warning or at a small expense, or does it require an entire 
readjustment of their tariffs and a readjustment of their instructions 
for carrying on their business? Let us suppose that a statute, con¬ 
ceded for the moment to be unconstitutional, should require a reduc¬ 
tion in their charges. Suppose that by virtue of the difficulty of 
obtaining a hearing they can obtain no injunction against this un¬ 
constitutional statute being put into effect. What must they do? 
What is the practical situation in which they find themselves?. 
They must figure out the basis of charge on the new basis, between 
every two stations on their lines involved in the law. They must re¬ 
duce that to the form of a printed tariff. They must issue instruc¬ 
tions as to putting it into effect. But that is not all they must do. 
Inasmuch as practically every interstate rate is made on a combina¬ 
tion of the rate to a certain point, plus the local beyond, they must 
readjust their interstate tariffs. And all because they can not get a 
hearing because of the practical and physical difficulty of getting 
the court together—all because justice is made hard to them. 


FEDERAL INJUNCTIONS. 


13 


In the case supposed, they would not only have to go to this ex¬ 
pense, to this trouble, to this readjustment of all their matters, but, 
as heretofore indicated in my argument, they must lose the amount 
of the reduction, not only on the intrastate business, but on all the 
interstate business involved in the combination of locals. And it is 
left in a way that it is not in the power of this Government to restore 
to them the amount lost and taken illegally from them—to give 
them back the protection of the Constitution of the country, which 
they were promised and which is a part of the social compact of the 
Union, and on the faith of which we entered into the national family 
relationship. The protection of the Constitution should be sacred 
and is the right of all. 

There seems to me also to be another fundamental difficulty that 
is lost sight of if protection in respect to constitutional rights is made 
either uncertain or difficult, and perhaps this, in relation to the 
national interests, is as great as, if not greater than, any that I have 
mentioned. The system of transportation in this country to-day is 
carried on by private ownership. No law can be passed to make the 
individual invest his money in anything. If he is to invest, he must 
be attracted to the investment in some way. He must not be 
repelled from it by the character of the laws which govern his property. 
If he is not safe in his investment he will not make it. If he will not 
make it, then the facilities for the transportation of the country 
must halt and can not keep pace with the development of its com¬ 
merce, or the system must perish and the work be taken up anew by 
other hands. 

If, therefore, when a man invests his money in one of these insti¬ 
tutions, he can not get constitutional protection because of the diffi¬ 
culties which a law throws in his path, it will not be long before he will 
decline to make the investment. 

I suppose that few people understand the responsibilities and the 
problems of the railroad manager of to-day. He must not only meet 
the demands of the public, but, while meeting them, he must make 
attractive to the people who can build up the facilities which he is 
managing the investment of their means in that kind of industry. He 
must try to satisfy the growing requirements of the public on the 
one hand, and he must, on the other, show to the person on whom he 
is dependent for the facilities which lie must provide that the invest¬ 
ment would be as safe in that line of business, and as certain of con¬ 
stitutional protection, as if the investment is made in some other line. 

Now, we have already reached this situation. If you own a piece 
of property other than the property of a carrier, you ascertain its 
value by capitalizing its legitimate earning capacity. That economic 
principle is being reversed in the public mind as to the business of 
carriers, and you ascertain their legitimate earning capacity by arbi¬ 
trarily fixing the value of their property. How long are we going to 
be able to survive that economic mistake? How long are the people 
of this country going to be willing to invest their means in a class of 
property that first has its value fixed arbitrarily and then its earning 
capacity measured by the figures thus established, when they can 
invest in other classes of property and have the value grow with the 
legitimate earning capacity? 

Suppose we add to all this a difficulty in obtaining constitutional 
protection even within the narrow lines of values thus arbitrarily estab¬ 
lished. Suppose we make it hard for the investor—suppose at times 


14 


FEDERAL INJUNCTIONS. 


and in some sections of this country we make it impossible for him—to 
obtain the protection of the courts in the declaration and enforce¬ 
ment of his constitutional rights: how long would it be before the 
system of private ownership is definitely, if not fatally, weakened ? 

I refer, may it please your honor, to these considerations as relating 
to the wisdom of changing the time-honored powers of our federal 
judiciary. It does seem to me that the mere fact that there was a 
popular agitation on this subject two years ago ought not to commit 
us to such a grave mistake in governmental principle. These popular 
waves of irritation and agitation quickly rise and quickly subside. 
I can remember the time, and perhaps your honor can remember it 
also, when, at the high tide of this agitation to which I allude, the 
leaders of it could have been elected to anything within the gift of 
the people. Your honor recollects how quickly that subsided and 
how it became impossible to elect them to anything. Now, shall 
we take from that agitation, so quickly subsided—so quickly re¬ 
jected by the good sense and sense of patriotism of the people—a 
reformation of methods which would result in weakening protection 
to the just rights of those, who, in that very case, have been, by the 
Supreme Court of the United States, decided to have been merely 
asking for what was their just due under the Constitution of the 
United States? 

Your honor asked, a moment ago, whether or not a good answer to 
such an agitation would not be to require that three judges shall con¬ 
cur, and I fancy that that is at the bottom of the thought of your 
honor in favoring this system of legislation. What I believe to be 
in your honor’s mind is the attempt to meet in some legitimate way 
the conditions that may arise out of such an agitation, in a way to 
preserve the public peace. And it is an honorable ambition. But 
can we say that it is a correct, that it is a just, solution of the diffi¬ 
culty, when it involves a discrimination by the Government against 
the federal judiciary in favor of the state judiciary, when it involves 
a giving way to an unjust demand and an unjust conception on the 
part of the people of a State of their relations to the supreme law of 
their land? Do we not sacrifice more by yielding to this reproach 
upon the federal judiciary than we would do if we insisted that the 
National Government is as much to be respected as a state govern¬ 
ment within its just constitutional limitations, and educate the people 
of the States up to a recognition of the just powers, as historic as the 
Union, of the judges of the Union? Shall we give way to these 
temporary views of the situation, that were rejected by the people 
themselves before the end of the calendar year in which the agitation 
arose ? Shall we change our institutions for the purpose of meeting 
a condition so unreasonable and so temporary, or shall we still main¬ 
tain our institutions firm and strong, as they have been maintained 
during the one hundred and thirty years of our national life, and 
throw the influence of the leadership of Congress in favor of a just 
and affectionate recognition of the relations of the Union to the 
people of the States? 

It seems to me that if we take the step now proposed we will be 
sacrificing the substance of right government and of justice in order 
to meet a situation which the people themselves, as soon as they are 
left time to think, appreciate—we will be adjusting our institutions 


FEDERAL INJUNCTIONS. 


15 


to meet a temporary frenzy, and will be sacrificing the reverence and 
the honor that we owe to institutions that have stood the strain of 
more than a century. 

Coming now to the provisions of this bill, and discussing the subject 
from the standpoint of some legislation on the subject, which, from 
the argument I have already made, you will see that I deplore, but 
considering the matter from the standpoint that possibly the wisdom 
of Congress may conclude that there should be some legislation on 
this subject, it seems to me that in the bill as proposed there are cer¬ 
tain difficulties which it is not necessary, in any aspect of the case, to 
insist upon. Your honor has already alluded to that provision which 
prevents the issuing of an injunction except after issue made, and you 
have conceded that to insist on that would be unwise. 

Senator Overman. Yes; that appealed to me. 

Mr. Thom. Your honor has recognized that that would put it into 
the power of a defendant to postpone the application for an injunction 
until the defendant had time to make up the issues. I shall assume 
that it is not necessary to mention this provision of the bill further. 

Senator Overman. I should like you to state it. 

Mr. Long. What part of the bill is it? 

Senator Overman. In line 12; the idea is to strike out the words 
“issue made.” 

Mr. Emory. What words are to be stricken out there? 

Mr. Thom. The words “issue made” are to be stricken out. 

Senator Overman. Instead of reading “upon issue made and,” it 
will simply say “upon proof taken.” 

Mr. Thom. I will present a brief draft of the amendments I shall 
suggest, including that. 

Senator Overman. We shall be glad to have it. 

Mr. Thom. There are, it seems to me, certain fundamental objec¬ 
tions to the scheme of this bill. The scheme of it is that the applica¬ 
tion for an injunction must be made to a circuit judge. 

Senator Overman. I want to say that this bill is not the bill as 
prepared by me. This is a bill that is a substitute for a bill that I 
introduced. 

Mr. Thom. That I understood, but this is the only bill that we 
can deal with now. 

Mr. Long. This bill is as it was reported from the committee? 

Senator Overman. As the committee bill. 

Mr. Long. And is now pending on the Senate Calendar? 

Senator Overman. The facts are that I introduced a bill during the 
last Congress. The committee prepared a substitute for it; that went 
to the Senate and passed the Senate. Then when the next Congress 
came in I introduced the committee's bill as my bill. This is the 
bill of the committee. 

Mr. Long. The same that was reported by the committee during 
the last Congress ? 

Senator Overman. Yes. This is the substitute for my bill intro¬ 
duced during the last Congress. In this Congress I have introduced 
this bill (the committee bill) as my bill. 

Mr. Thom. Now, referring to this bill before us (S. 3724, 61st Cong., 
2d sess.), it seems to me that the purpose of the bill is fully met by 
requiring that there shall be three judges to hear and determine the 


16 


FEDERAL INJUNCTIONS. 


motion for an interlocutory injunction after notice to the governor 
and attorney-general of the State. It does not seem to me that it 
should be necessary to exclude a justice of the Supreme Court of the 
United States, nor does it seem to me that it should be necessary to 
exclude a district judge of the United States acting as a circuit judge. 

It is well known in some parts of the country that the circuit courts 
are almost entirely held by district judges. There is a good reason 
for it. The present judicial system of the United States provides 
for a district court, a circuit court, a circuit court of appeals, and the 
Supreme Court of the United States. If the circuit judge was con¬ 
stantly holding a circuit court and deciding cases, he would be incapac¬ 
itating himself for sitting in these cases on the circuit court of appeals. 
And the greater the extent to which he sits in the circuit court the 
greater would be his incapacity for the circuit court of appeals. We 
would thus have the curious situation that the circuit court judge, 
who is officially superior to the district judge, would have the appeal 
from him heard by a court of district judges, because he would be 
incapacitated. That would be universally so where there is but one 
circuit judge. And where there are only two circuit judges, as in the 
case of your circuit, we would have a circuit court of appeals on an 
appeal from a circuit judge held by one circuit judge and two district 
judges. 

Now, to avoid that anomaly it has become the practice of the cir¬ 
cuit judges of the United States to hold themselves for circuit court 
of appeals duty just so far as the performance of their public obliga¬ 
tions will permit. 

That is the case everywhere I know in the United States. 

But I am told this is especially the case in those circuits where it 
would involve 2,000 miles of travel, as in the eighth circuit, for a cir¬ 
cuit judge to hold a circuit court. 

Now, although the district judges, sitting either as district or as 
circuit judges, have power to pass upon all the rights of liberty and 
life of a citizen, so far as within the jurisdiction of the United States, 
and, sitting in the circuit court, have power to pass upon every right 
of property not involved in the class proposed to be made exceptional 
in this bill, the policy announced by this bill is to make these judges 
incapable, except as a minority of the court, from considering any 
question relating to these interlocutory injunctions. 

That is making justice almost impossible in some cases. In some 

E arts of the country it is making it wholly impossible. You may not 
e able to get to the circuit judge, when a trip of 2,000 miles is in¬ 
volved, and in many other cases, in time to set machinery in motion 
which will act sufficiently early to protect the interests of the litigant. 

Therefore, I think a just objection to this bill is that it strikes down 
the district judge sitting as a circuit judge, and there ought to be an 
amendment, the nature of which I will suggest in a moment, con¬ 
stituting the board of judges differently. 

Senator Overman. I will say at this point that I have a letter from 
the Attorney-General on the subject of this bill, which I will read. 
It is as follows: 


FEDERAL. INJUNCTIONS. 


17 


Department of Justice, 

Office of the Attorney-General, 

Washington , D. C., January 22, 1910. 

Hon. Lee S. Overman, 

United States Senate. 

My Dear Senator: My attention has been called to Senate bill 
3724, introduced by you and reported from the Judiciary Committee, 
being a bill “regulating injunctions and the practice of the district 
and circuit courts of the United States. 7 ’ I would suggest that this 
should be modified so as to permit the application to be presented to 
a district judge, and the proceedings which are required to be heard 
before three circuit judges to be allowable before any three judges, 
district or circuit of the circuit in which the cause is pending. It is 
sometimes impossible to get at a circuit judge within the time which 
is available for the purpose of making such applications as are dealt 
with in this bill. Take the eighth circuit, for example. The circuit 
judges in that circuit are for the greater part of the year engaged in 
holding the court of appeals either in St. Paul or St. Louis, with only 
a short session in Denver. Now, if a case should arise making it 
proper to procure such an injunction as the bill refers to in North 
Dakota, for example, you can readily see how burdensome it would 
be to put upon the suitor the necessity of finding a circuit judge; that 

is, of going to either St. Paul or St. Louis for the purpose, and when 
it came to the hearing which, by your bill, is to be conducted by three 
judges, two of whom shall be circuit judges, such hearing would 
probably have to take place either in St. Paul or St. Louis, because 
the circuit judges would be occupied there in appellate court work. 
These are practical considerations which are of such moment that I 
venture to direct your attention to them. 

I would suggest, also, that the bill should contain an exception of 
pending cases, so that it would not operate to, in effect, vacate an 
injunction obtained, or a case in which a temporary restraining order 
has been obtained, with a motion for an injunction pendente lite 
made returnable when the act should take effect. 

Faithfully yours, 

Geo. W. Wickersham, 

Attorney-General. 

Mr. Thom. Another very obvious objection, if the construction 
which justifies it is the true construction of the act, is the prohibition 
upon any district judge sitting as a circuit judge to enter a final 
decree in the injunction case. The word “decree” is used in the 
fourth line of the bill. If it means the same thing as “order” it is 
superfluous. If it means (as construed in some sections of the 
country) a final decree, then, after the court has given an inter¬ 
locutory injunction, there is no way for the district judge to go on 
and deal with the remaining features of the case. 

But it seems to me that a more fundamental and serious objection 
is the requirement that there shall be no temporary restraining order 
unless granted by two of these judges; that by this requirement you 
make a temporary restraining order almost impossible. Some people 
construe this bill," and some of the best lawyers that I know construe 

it, as requiring those two judges to be together. 

Senator Overman. I do not see that. 

26589—10-2 


18 


FEDERAL INJUNCTIONS. 


Mr. Thom. That is a construction that is put upon it by some of 
the very best lawyers that I know. 

Senator Overman. I do not think that that was the intention. 

Mr. Thom. Their views would help to shape my conclusion in 
respect to it, even though I were inclined to think differently on that 
point. 

Senator Overman. There ought not to be any doubt about it. 

Mr. Thom. There ought not to be any doubt about it, at any rate. 
But even if it is not necessary for the two judges to be together, 
in order to grant the temporary restraining order, what, until the 
three can get together, is the reason for requiring a litigant to travel 
thousands of miles from one judge to another, in order to have the 
status quo maintained until the three judges of the United States 
court can get together to hear the application for the interlocutory 
inj unction? 

Senator Overman. Have you an amendment with you? 

Mr. Thom. Yes. 

Senator Overman. What time do you give ? 

Mr. Thom. I have not limited the time, but I have expedited the 
hearing by this board of three judges, practically doing the same 
thing, in regard to that, that is done in the expediting act of 1903. 

Senator Overman. That has the same provision, requiring three 
judges to hear the question. Does not that provide more than two 
judges? 

Mr. Long. Yes; in suits in which the United States is complainant. 

Senator Overman. That is as I understand it. 

Mr. Thom. I have added a suggestion, the same as the expediting 
provision, mutatis mutandis, that is contained in that act. That 
act requires a certificate from the Attorney-General that the expe¬ 
diting is desirable. That is not in my proposed draft for the reason 
that the Attorney-General has no interest in the matters covered by 
this bill, but this draft requires that the hearing shall be expedited 
in the same way that that act insures expedition after the certificate 
of the Attorney-General is given. 

I hope very much that Congress, if it passes this law at all, will 
see the justice of not creating this hardship in the way of getting 
a temporary restraining order. 

Senator Overman. Your idea is that there would be much time 
consumed in going before the three judges to get the restraining 
order? 

Mr. Thom. Yes, sir—and more. The whole theory of Congress 
from the foundation of this Government has been to bring justice 
to the litigant’s door. 

Senator Overman. That is true. 

Mr. Thom. Now, why reverse that, and require us not only not 
to have it at our door, but to be obliged to travel thousands of miles 
before we can get a hearing upon the merits of the motion? 

Senator Overman. Will you leave us your suggested bill? 

Mr. Thom. I will leave it for the record, but I want to read it to 
you first. If you follow my reading, with the committee’s bill before 
you, you will observe what changes are made [reading]: 

“Be it enacted by the Senate and House oj Representatives of the 
United States of America in Congress assembled , That no interlocutory 
injunction suspending or restraining the enforcement, operation, or 


FEDERAL INJUNCTIONS. 


19 


execution of any statute of a State, by restraining the action of any 
officer of such State in the enforcement or execution of such statute, 
shall be issued or granted by any justice of the Supreme Court, or by 
any circuit court of the United States or by any judge thereof, or 
by any district judge acting as circuit judge, upon the ground of 
the unconstitutionality of such statute, unless the application for the 
same shall be presented to a justice of the Supreme Court of the 
United States, or to a circuit judge, or to a district judge acting as 
circuit judge, and shall be heard and determined by three judges, of 
whom at least one shall be a justice of the Supreme Court of the 
United States or a circuit judge and the other two may be either 
circuit or district judges, and unless a majority of said three judges 
shall concur in granting such application. Whenever such applica¬ 
tion as aforesaid is presented to a justice of the Supreme Court of the 
United States, or to a judge, he shall immediately call to his assist¬ 
ance to hear and determine the application two other judges: Pro¬ 
vided, however, That one of such three judges shall be a justice of the 
Supreme Court of the United States or a circuit judge. Said appli¬ 
cation shall not be heard or determined before at least five days’ 
notice of the hearing has been given to the governor and to the attor¬ 
ney-general of the State and to such other persons as may be defend¬ 
ants in the suit: Provided, That if of opinion that irreparable loss or 
damage would result to the complainant unless a temporary restrain¬ 
ing order is granted, any justice of the Supreme Court of the United 
States, or any circuit or district judge, may grant such temporary 
restraining order at any time before such hearing and determination 
of the application for an interlocutory injunction, but such temporary 
restraining order shall only' remain in force until the hearing and 
determination of the application for an interlocutory injunction upon 
notice as aforesaid. The hearing upon such application for an inter¬ 
locutory injunction shall be given precedence and shall be in every 
way expedited and be assigned for a hearing at the earliest practicable 
day after the expiration of the notice hereinbefore provided for. An 
appeal may be taken directly to the Supreme Court of the United 
States from the order granting or denying, after notice and hearing, 
an interlocutory injunction in such case; and the hearing of such 
appeal shall take precedence over all other cases except those of a 
similar character and criminal cases.” 

Mr. Thom. I now submit the matter to the committee, so far as 
I am concerned. 

Senator Overman. I am very glad to have heard you on the bill. 
I am confident that no member of the committee wishes to clog or 
delay justice in the matter. It was intended to remove all prejudice 
against the federal court. That was the motive that actuated the 
committee. The idea was that if as many as two or three judges 
would declare an act to be unconstitutional the people would be per¬ 
fectly satisfied, whereas if done by only one judge it would be a case 
of one judge as against another judge, as was the case in North 
Carolina. 

Mr. Lathrop. It is now 5 o’clock and I should be glad to post¬ 
pone until to-morrow the remarks that I desire to make. 

Senator Overman. Then we will adjourn the hearing until to-mor¬ 
row at 3 o’clock. 

(The subcommittee then adjourned until to-morrow, Friday, Janu¬ 
ary 28, at 3 p. m.) 


20 


FEDERAL INJUNCTIONS. 


Committee on the Judiciary, U. S. Senate, 

Friday , January 28, 1910 . 

The committee met at 3 p. m. Present, Senator Overman. 

ARGUMENT OF GARDINER LATHROP, ESQ., OF CHICAGO, ILL. 

Mr. Lathrop. I want to say in opening that the thanks of all who 
are concerned in this bill are particularly due to you, and through 
you to your associates of the Judiciary Committee, for according a 
hearing to us and listening to the objections that may be advanced 
to any legislation of this character, and to any amendments to the 
bill that may be suggested after the bill has gone through the com¬ 
mittee and has been reached upon the calendar of the Senate. It 
seems to me that it indicates an open mind on your part and that of 
your associates as to whether or not this bill should be passed in its 
present condition or whether any law of this character should go upon 
the statute books. 

Personally, I am the general solicitor of the the Atchison, Topeka 
and Santa Fe Railway Company, but I come here not only in behalf 
of that company, but as the designated representative of a large num¬ 
ber of the western railroad lines centering in Chicago and St. Louis, 
to voice, as best I may, opposition to any legislation of this character, 
and if it is impossible to prevent such legislation, then to second the 
very able presentation made by my friend, Colonel Thom, on yester¬ 
day, in favor of a substitute or substantial amendment to the bill as 
it now stands. 

Senator Overman. Do you support that substitute? 

Mr. Lathrop. Yes, sir. In the outset I want to challenge your 
attention and that of your associates on the committee to the fact 
that you are altering radically a jurisdiction which has obtained in 
the federal courts of the United States for nearly three-quarters of 
a century, as pointed out in ex parte Young (209 U. S., 123), as early 
as the case of Osborn against the Bank. 

Senator Overman. You will give us those citations, will you? 

Mr. Lathrop. Yes. As early as the case of Osborn against the 
Bank (9 Wheat., 738), the jurisdiction of federal courts of equity 
to restrain a state statute was maintained and established, and it has 
continued since the decision of that case in 1824 down to the present 
time without any limitations, and I submit, from the record, without 
any substantial abuse. 

In the case of ex parte Young, the court, on pages 166-167, says: 

“Finally it is objected that the necessary result of upholding this 
suit in the circuit court will be to draw to the lower federal courts a 
great flood of litigation, of this character, where one federal judge 
would have it in his power to enjoin proceedings by state officials to 
enforce the legislative acts of the State, either by criminal or civil 
actions. To this it may be answered, in the first place, that no injunc¬ 
tion ought to be granted unless in a case reasonably free from doubt. 
We think such rule is, and will be, followed bv all the judges of the 
federal courts/’ 

Again on page 168, at the conclusion of the opinion, the court says: 

“ There is nothing in the case before us that ought properly to breed 
hostility to the customary operation of federal courts of justice in 
cases of this character.” 


FEDERAL INJUNCTIONS. 


21 


I submit, upon the record of the Supreme Court of the United 
States and upon the record of the district judges themselves upon 
the circuit, that the right of injunction has not been substantially 
abused. Those judges are naturally men of conservatism, and with 
the admonition of the Supreme Court in the Young case and in other 
recent cases, district judges, of their own motion, and in obedience 
to the suggestions of the Supreme Court of the United States, will 
always be slow to grant injunctions unless the case made upon the 
bill is strong and persuasive. 

The frequent exercise of power of this character of recent years 
came, as your honor knows, after a flood of drastic legislation, passed 
in many instances without due investigation, in response to popular 
clamor. That wave has passed, and legislatures, reflecting public 
sentiment, are now more considerate, cautious, fair, and conservative 
in the treatment of questions affecting public-service corporations. 

Federal intervention is only invoked and was only invoked during 
that wave, in extreme cases, where ill-considered legislation had been 
passed without due investigation and where the rights of large 
property interests were about to be stricken down without the pro¬ 
tection guaranteed by the Federal Constitution and the laws made 
in pursuance thereof. 

That courts of equity ought to have the power to stay the effect 
of statutes which threaten irreparable injury is very clearly and 
aptly stated by the Supreme Court of the United States in the case of 
Vicksburg Waterworks Company v. Vicksburg (185 U. S., 65). 

In that case the court said, as to the right to an injunction: 

‘“It is further contended that the bill does not disclose any actual 
proceeding on the part of the city to displace complainant’s rights 
under the contract, that mere apprehension'that illegal action may 
be taken by the city can not be the basis of enjoining such action, and 
that therefore the circuit court did right in dismissing the bill. We 
can not accede to this contention. It is one often made in cases 
where bills in equity are filed to prevent anticipated and threatened 
action. But it is one of the most valuable features of equity juris¬ 
diction to anticipate and prevent a threatened injury, where the 
damages would be insufficient or irreparable. The exercise of such 
jurisdiction is for the benefit of both parties—in disclosing to the 
defendant that he is proceeding without warrant of law and in pro¬ 
tecting the complainant from injuries which, if inflicted, would be 
wholly destructive of his rights.” 

In the very cases where the largest amount of popular indignation 
was aroused, a case arising in your own State and a case arising in 
the State of Minnesota, the action of the district judges, sitting as 
circuit judges in both of those cases, as your honor well knows, was 
affirmed by the Supreme Court of the United States, and after that 
court in those cases made it clear to the thinking people of this 
country that the Constitution and laws of the United States were 
just as operative and just as controlling in the States as were state 
statutes, and that wherever state statutes came in conflict with the 
Constitution and the laws of the United States the latter were the 
supreme law of the land, public indignation ceased. Right-thinking 
people saw that in our dual system of government that must be 
recognized, and, as I have said, the flood of ill-considered legislation 
stopped, the wave of popular frenzy ceased, and men began to 


22 


FEDERAL INJUNCTIONS. 


recognize that it was not only the law but that it was to the interest 
of the Republic that property rights should be maintained and 
established, and wherever state statutes came in conflict with the 
supreme law that it was right and just that they should go down and 
property interests be protected. 

What is going to be the result if you take away this power from 
the district judges? Suitors in other cases will have the right to 
injunction orders and decrees from district judges, while such right 
will be denied to suitors attacking unconstitutional statutes. Wher¬ 
ever there is a private right the jurisdiction of the district or circuit 
judge, sitting alone, remains unimpaired. But where the wrongs 
are infinitely greater, where the losses are immeasurably larger, a 
district judge sitting in the very State in which the controversy 
arose is powerless to grant relief in one case to one class of citizens 
and property owners, while he has full authority and jurisdiction to 
grant it to every other. 

I respectfully submit that there is no reason why a suitor should 
not have relief against the many, whose legislative acts invade his 
constitutional rights, just as another suitor has relief against the 
threatened acts of an individual. 

I think, as Colonel Thom so clearly pointed out yesterday, that 
the courts without any sort of limitation on their jurisdiction should 
stand with the full power to protect the rights of the minority, or 
of the one against the many, and that the reasons why that juris¬ 
diction should be maintained are far more cogent and persuasive 
than to leave the jurisdiction between two suitors where private 
rights are involved, and deny it in cases where the power of the many, 
through the legislatures of the respective States, have passed laws 
which are invalid under the Federal Constitution, affecting the 
rights of large property owners. 

If the jurisdiction is taken away from the district judges, the 
anomalous condition will arise that the inferior judges of the state 
courts of the Union will have the right to enjoin the enforcement not 
only of state statutes, as Colonel Thom suggested yesterday, but of 
federal statutes as well, alleged to be unconstitutional, while district 
judges of the courts of the United States, which are the courts of the 
people as much as the state tribunals, will have no right to stay the 
effect of void state statutes. 

I submit that the personnel of the district judges deserves no such 
legislative affront. They have been and are, as all lawyers know, as a 
class, leaders of the bar of their respective States, many of whom 
have been on the supreme bench of the different States. They are, 
as a class, men of conservatism. They not only constantly exercise 
the duties of judges at nisi prius, but are often called upon to sit on 
the circuit court of appeals. 

The eighth circuit, to which Senator Long and I belong, does not 
have a term of the circuit court of appeals, so heavy is the docket, 
but that district judges are called from distant parts of the district to 
sit on the circuit court of appeals. Often, in hearing causes in that 
court, there are two district judges sitting and but one circuit judge. 

Your honor spoke of an appointment in your own State of a man 
to the federal bench taken from the supreme court of your State. 
Judge Pollock, in Senator Long’s State, was an honored member of 
the supreme court of his State and has made an enviable record as 
district judge. He is frequently called into the State of Missouri to 


FEDERAL INJUNCTIONS. 


23 


perform the duties of circuit judge, and in his own State is doing 
almost the entire nisi prius work of the circuit judge. Considering 
the record of the district judges, as written in the volumes of the 
Supreme Court of the United States, in this time when popular 
clamor has ceased, why offer to those servants of the people an 
undeserved affront and take from them a power that has been 
exercised by them and their predecessors for little less than a century ? 

In times of popular clamor and excitement, owners of large property 
interests are 'entitled to protection against ill-considered and hasty 
legislation—entitled to it at the hands of a district judge of the 
United States sitting in the State itself and perfectly familiar with 
conditions. As your honor well knows, it is the great glory of our 
institutions, unique among the governments of the world, that the 
courts have a right to strike down legislative acts, whether federal 
or state, because they are in conflict with the national Constitution. 
And you know, as every public man and every lawyer knows, and 
every thoughtful citizen knows, that in times of popular excitement 
and clamor, when there is danger of the rule of the mob being written 
down in the statute books, the courts have been the defense of our 
people and our interests, sitting calm and immovable and adminis¬ 
tering the law fearlessly. 

I say that it would be a reproach, it seems to me, upon the adminis¬ 
tration of justice and upon our institutions in times like these to cast 
any aspersion not only on the district judges as persons but upon the 
administration of justice by the national courts, which, since the 
foundation of the Republic, has proved our protection against the 
invasion of property rights in times of great national and state ex¬ 
citement. 

The difficulty of assembling three circuit judges, or two circuit 
judges and a district judge, would lead to serious embarassment, long- 
delay, and, in many cases, to irreparable injury. In many circuits 
of this country the judges live at long distances from each other. 
The circuit judges in many circuits are overwhelmed with their 
work on the court of appeals. To insist that before any injunctive 
relief shall be given, three judges, of whom two shall be circuit judges, 
shall be found, would be, in many cases, a substantial denial of jus¬ 
tice. 

In this connection I wish to read into the record two letters 
applicable to this legislation, showing the practical difficulties that 
will result if it should be passed, or if any bill of a similar character 
to that now under consideration should become a law. 

The first letter is from Mr. Blewett Lee, general solicitor of the 
Illinois Centra] Railroad. It is as follows: 


Illinois Central Railroad Company, 

Law Department, 
Chicago, January 15, 1910. 


Gardiner Lathrop, Esq., 

General Solicitor The A. T. <A S. F. Ry. System, 

Railway Exchange, Chicago. 


Dear Sir: In'regard to the Overman bill (S. 3724) I observe that 
it requires a hearing before at least two circuit judges and one district 
judge or circuit judge. The Yazoo and Mississippi Valley Railroad 
Company, a corporation incorporated in Mississippi and haying most 
of its lines there, has recently had occasion to file two bills in the 


24 


FEDERAL INJUNCTIONS. 


circuit court of the United States against the Mississippi railroad 
commission in regard to rates on cotton. This railroad company 
has not been making operating expenses for more than a year. The 
hills were based upon this fact as well as upon charter exemptions 
from rate regulation. The statute of Mississippi imposes a $500 
penalty for every shipment at a higher rate than that charged by the 
commission. Cotton cuts a great figure in the traffic of this railroad 
company, and the reduction of rates made by the commission would 
make a formidable increase in the annual deficit of the company. 

Assuming that the Overman bill had been the law, the list of the 
judges of the fifth circuit discloses that the three circuit judges are 
located at Atlanta, Ga., Dallas, Tex., and Huntsville, Ala. Not only 
would the complainant have been bound to travel a long distance 
outside of the State of Mississippi to find Judge Shelby, the nearest 
circuit judge, but he would have had to obtain another circuit judge 
from Atlanta, Ga., or Dallas, Tex. There is only one district judge 
in Mississippi at all, and no other district judge nearer to Mississippi 
than New Orleans or Mobile. In order to prepare the bill at all, it 
was necessary to make an elaborate study or the accounts of the 
railroad company, at a great loss of time and at great labor, and the 
impediment created by the Overman bill would have been a very 
serious obstacle to getting into court at all. 

Yours, truly, 

Blewett Lee, 

General Solicitor. 

The second letter is from Mr. George R. Peck, general counsel of 
the Chicago, Milwaukee and St. Paul Railway Company, and is as 
follows: 


Chicago, Milwaukee and 

St. Paul Railway Company, 

Office of the General Counsel, 

Chicago, January 20, 1910. 

Mr. Gardiner Latiirop, 

General Solicitor, A. T. & S. F. By., 

Chicago, III. 

Dear Sir: I learned to-day that you are expecting to be in Wash¬ 
ington soon and will request a hearing before the Judiciary Committee 
on Senate bill 3724, introduced by Senator Overman. The effect of 
the bill, if it becomes* a law, though doubtless such was not the pur¬ 
pose of Senator Overman in introducing it, will be to impose unneces¬ 
sary and unreasonable obstacles upon parties complaining of action 
or threatened action under unconstitutional state statutes. 

It proposes to take from district judges of the United States a 
jurisdiction which they have exercised from time immemorial—a 
jurisdiction which is wholesome and necessary for the protection of 
the people of the United States in their legal and constitutional 
rights. It seems to me the language of the bill implies that the 
judges of the United States can not be trusted to administer justice 
fairly and impartially in the granting of interlocutory and temporary 
orders. It requires that all applications for temporary injunctions 
or for a temporary restraining order shall be presented to a circuit 
judge, and even prohibits that officer from acting upon the applica- 



FEDERAL INJUNCTIONS. 


25 


tion except in conjunction with two other judges, at least one of 
whom shall be a circuit judge. 

There are several judicial districts in the United States where there 
is no circuit judge, and where no application can be made within the 
district except to a district judge. 

There are only 25 States in the Union which have a circuit judge 
residing within their boundaries. Each of these 25 States has one 
circuit judge, and New York has 3, Ohio, Illinois, and California 2 
each. 

Eighteen States have no circuit judge at all, namely: Arkansas, 7 
Colorado, Florida, Idaho, Kentucky, Louisiana, Maryland, Missis¬ 
sippi, Montana, Nevada, New Hampshire, North Dakota, South Caro¬ 
lina, South Dakota, Utah, Vermont, Virginia, Washington. 

To give no circuit judge to the people of any of these 18 States, and 
then deprive the district judges of jurisdiction to grant temporary 
injunctions and restraining orders will, in effect, be a denial of justice 
in many instances. The provision requiring the circuit judge to 
whom application is made to immediately call to his assistance one 
circuit judge and one district judge or another circuit judge would be 
a very inconvenient, unwieldly, and almost impracticable method. 
While in New York, Ohio, and Illinois, and the densely populated 
portions of the country the distance between the residences of the 
circuit judges might not be very large, yet in other parts of the Union 
they live very remote from each other, and to assemble three judges, 
of whom two must be circuit judges, would consume much time and 
be burdensome and expensive. 

As an illustration of the hardships which would ensue if the bill 
becomes a law, consider the States of North Dakota and South 
Dakota, neither of which has a circuit judge nearer to the people 
of either State than St. Paul or Cheyenne. 

There are many other objections which might be urged against 
the provisions of the bill, and they doubtless will occur to you. 
One is the unfair reflection upon the character of the district judges. 
These latter necessarily carry on the great bulk of current business, 
while the circuit judges sit a large portion of the time in the court of 
appeals. If the district judges are qualified to hold the terms of the 
circuit courts, as they often do, it seems unreasonable to declare that 
they can not be trusted in the issuance of interlocutory and temporary 
orders. 

Yours, very truly, Geo. R. Peck, General Counsel. 

While this proposed law is general in its character, it can not, of 
course, fail to be recognized that the real inspiration of the law has 
come from the popular feeling that arose at one time in your State, 
and in Minnesota and other States, against the interference by federal 
judges with state statutes passed to regulate railroad rates. In 
attacks upon rate laws, district judges, if any legislation is to be 

E assed, should at least have power to issue restraining orders in the 
rst instance and preserve the status quo and prevent the accummula- 
tion of penalties, such order to remain in force until the hearing and 
determination of the application for a temporary injunction. 

As your honor knows, under the system of rate making in the 
United States, as pointed out by Colonel Thom yesterday, there is 
hardly a state statute, if any, affecting railroad rates in a given State, 
which does not necessarily and directly affect interstate rates, and 


26 


FEDERAL INJUNCTIONS. 


thus impose a burden on interstate commerce, and it seems to me 
that that reason alone, so far as legislation of this character diminishes 
the right of interference by federal judges with state rate laws, ought 
to be a powerful and persuasive and overwhelming argument against 
any such legislation, so as to reserve to the federal authority, as our 
fathers reserved it in no unmistakable language, the supreme control 
over interstate and foreign commerce. 

Frequently, as your honor knows, under many constitutions—it is 
so in the State from which I came a few years ago to Chicago, the 
State of Missouri, where I lived most of my life—there is a provision 
that laws may be passed, known as emergency laws. That is, if the 
legislators desire some law to go into immediate effect they can state 
in the bill that it is of so great importance, and the demand for its 
passage is so urgent, that an emergency is created under the consti¬ 
tution, and that therefore the law shall go into effect from the date 
of its passage and approval. 

Now, take cases of that character, which are liable to occur in 
periods of great excitement, and before an application could be made 
to three circuit judges, or to two circuit judges and a district judge, 
property rights inestimable in value may have been stricken down 
without any power on earth for recovery or redress. 

Senator Overman. Would that be so with your amended bill* 

Mr. Lathrop. No, sir. In that amended bill it is provided, as you 
will perhaps recall from Colonel Thom’s reading of it yesterday, that 
while the main features of the Senate bill are preserved there is a 
right to apply to a justice of the supreme court or a circuit judge or 
a district judge in the first instance, and, upon making a proper show¬ 
ing, obtain a restraining order, to remain in force until the hearing 
and determination by the three judges of the application for a tem¬ 
porary injunction. 

In that way the status quo is preserved. Nobody is injured. 
The application is made to one judge, and the situation is preserved 
until such time as there may be a full, considerate hearing, no pen¬ 
alties being incurred and no agents subjected to criminal prosecu¬ 
tion in the meantime. They will be protected by the order of a 
judge of one of the courts of the United States. 

Where state statutes are passed affecting railroad rates, not only 
state tariffs have to be changed but interstate tariffs as well, because 
rates are so inextricably interwoven that no state rate can now be 
prescribed without its affecting interstate rates, rates being based in 
many instances upon the local rates in the States. 

Employees must also be instructed as to their duties under a 
statute which, upon hearing, may be held void. 

The loss in the meantime will be absolutely irrecoverable. 

If there is no power to arrest it, the road may have to put the law 
into operation. The state government can not reimburse, and the 
loss, in the language of the law, is irreparable. 

On the other hand, in the oases of rate laws, as you know, if the 
restraining order should be found upon full hearing to have been 
improperly granted, the shipper is entitled to reparation for the dif¬ 
ference between the rate prescribed by the State and the rate de¬ 
manded by the railway company. 

Whether in all instances it amounts to adequate reparation or 
not is beside the case. Because under the safeguards now provided, 


FEDERAL INJUNCTIONS. 


27 


it does amount to substantial reparation by having a bond filed or a 
deposit made of the difference between one rate and the other. But 
whether adequate or not, in one case the law provides substantial 
protection to the shipper; in the other case the owners of the property 
furnishing the public utility, unless they can arrest the statute pend¬ 
ing a judicial investigation, lose their property in the meantime, 
without any right of reparation against either Slate or individual. 

As your honor knows, a single judge has a right under existing law 
to grant a restraining order when otherwise irreparable injury would 
result. The so-called “ administration bill” amending the interstate 
commerce act to create a court of commerce contains a provision 
for a restraining order, in the discretion of the court. That bill in the 
Senate is S. 5106, and was introduced by Senator Elkins on the lltli 
of January, 1910. 

Section 3 of that bill reads as follows: 

“Sec. 3. That suits to enjoin, set aside, annul, or suspend any order 
of the Interstate Commerce Commission shall be brought in the court 
of commerce against the United States. The pendency of such suit 
shall not of itself stay or suspend the operation of the order of the 
Interstate Commerce Commission; but the court of commerce, in its 
discretion, may restrain or suspend the operation of the commission's 
order pending the final hearing and determination of the suit. No 
order or injunction so restraining or suspending an order of the Inter¬ 
state Commerce Commission shall be made by the court of commerce 
otherwise than upon notice and after hearing, except that in cases 
where irreparable damage would otherwise ensue to the petitioner a 
judge of said court may allow a temporary stay or suspension of the 
operation of the order of the Interstate Commerce Commission for 
not more than sixty days from the date of his order, pending appli¬ 
cation to the court for its order or injunction, in which case the said 
order shall contain a specific finding, based upon evidence submitted 
to the judge making the order and identified by reference thereto, 
that such irreparable damage would result to the petitioner and speci¬ 
fying the nature of the damage. The court may, at the time of hear¬ 
ing such application, upon a like finding, continue the temporary stay 
or suspension until its decision upon the application.” 

Now, I respectfully submit that with respect to the orders of the 
Interstate Commerce Commission—your honor knows that such 
orders are only made after painstaking investigation, continued over 
a long period of time, hearing witnesses on both sides and argument 
of counsel and handing down written opinions—if relief is to be 
accorded in cases of that kind by a single judge where irreparable 
injury is threatened, how much more reason that there should be 
lodged in a single judge of the federal court a right to arrest the oper¬ 
ation of state statutes, passed often, as your honor knows, without 
the time or means of making investigation, even without hearing both 
sides and generally without hearing arguments of those affected by 
such legislation, so as to afford protection against their going into 
effect where irreparable damage would result. 

Senator Overman. Will you cite me to the provision of the expe¬ 
dition statute ? 

Mr. Lathrop. Yes, sir. I have the statute right here. It was 
approved February 11, 1903. It is as follows: 


28 


FEDERAL INJUNCTIONS. 


AN ACT To expedite the hearing and determination of suits in equity pending or 
hereafter brought under the act of July second, eighteen hundred and ninety, 
entitled “An act to protect trade and commerce against unlawful restraints and 
monopolies,” “An act to regulate commerce,” approved February fourth, eighteen 
hundred and eighty-seven, or any other acts having a like purpose that may be 
hereafter enacted. 

Be it enacted by the Senate and House of Representatives of the United 
States of America in Congress assembled , That in any suit in equity 
pending or hereafter brought in any eircuit court of the United 
States under the act entitled “An act to protect trade and com¬ 
merce against unlawful restraints and monopolies/’ approved July 
second, eighteen hundred and ninety, “An act to regqlate commerce,” 
approved February fourth, eighteen hundred and eighty-seven, or 
any other acts having a like purpose that hereafter may be enacted, 
wherein the United States is complainant, the Attorney-General 
may file with the clerk of such court a certificate that, in his opin¬ 
ion, the case is of general public importance, a copy of which shall 
be immediately furnished by such clerk to each of the circuit judges 
of the circuit in which the case is pending. Thereupon such case 
shall be given precedence over others and in every way expedited, 
and be assigned for hearing at the earliest practicable day, before not 
less than three of the circuit judges of said circuit, if there be three or 
more; and if there be not more than two circuit judges, then before 
them and such district judge as they may select. In the event the 
judges sitting in such case shall be divided in opinion, the case shall 
be certified to the Supreme Court for review in like manner as if 
taken there by appeal as hereinafter provided. 

Sec. 2. That in every suit in equity pending or hereafter brought 
in any circuit court of the United States under any of said acts, 
wheren the United States is complainant, including cases submitted 
but not yet decided, an appeal from the final decree of the circuit 
court will lie only to the Supreme Court and must be taken within 
sixty days from the entry thereof: Provided , That in any case where 
an appeal may have been taken from the final decree of a circuit 
court to the circuit court of appeals before this act takes effect, the 
case shall proceed to a final decree therein, and an appeal may be 
taken from such decree to the Supreme Court in the manner now 
provided by law. 

Public No. 82, approved February 11, 1903. 

Now, as your honor know^, the Hepburn law provided that in 
the case of attacks upon the commission this law should be appealed 
to. 

Senator Overman. I was anxious to have that in the record. 

Mr. Latiirop. There is another class of laws—there may be many 
others—but there is one class of laws covered by this bill of great 
importance to corporations such as I represent and appear for here, 
namely, tax statutes passed by the different States. In the case of 
actions attacking statutes, such as tax statutes, if the district judges 
were without authority to issue restraining orders, engines and cars 
might be seized and the carriage of the mails and interstate commerce 
be seriously interfered with. A case in point: The State of Okla¬ 
homa, through which the Santa Fe and other roads run, passed an 
act which, in addition to other laws taxing all the property of the 
railroads in the State, their station houses, roadbed, equipment, etc., 
provided for a gross-revenue tax, and did not limit it to the 


FEDERAL INJUNCTIONS. 


29 


gross revenue obtained from business done within the State of Okla¬ 
homa locally, but included the revenue derived from its interstate 
business as well. The law provided that if the tax was not paid 
the state auditor could issue his warrant to the sheriff of any county 
through which the railroad runs, commanding the sheriff to seize 
the property of the railroad company in order to collect the tax. 

Now suppose your bill became a law. The nearest circuit judge to 
Oklahoma would be in Leaven worth, Kans., if he were at home. 
During the greater part of the.year he is either in St. Paul, Minn., or 
in St. Louis, Mo. Another circuit judge lives in St. Paul, something 
less than a thousand miles away. Another lives in St. Louis, per¬ 
haps 500 miles away; another lives in Cheyenne, Wyo. You have 
got to wait until your rights are threatened, or else you will be met 
with the objection in court that you have come into court too soon, 
before you are injured or before there has been threatened injury, 
and unless you can appeal to a district judge in the State where the 
controversy arises to arrest the issue of the auditor’s warrant and 
the seizure by the sheriff of the engines and cars of the railroad com¬ 
pany, interstate commerce might be interfered with; the carriage of 
the mails might be stopped, because frequently in busy times the 
railroads are taxed to furnish motive power and cars to do the business 
of the public. 

Certainly in such cases, where such drastic rights are sought to be 
exercised by the State or the public, and they are drastic undoubtedly, 
because the power to tax, as your honor knows, and as the Supreme 
Court said so many years ago through Chief Justice Marshall, involves 
the power to destroy, there ought to be some arm somewhere in that 
jurisdiction to say, ‘‘Until there can be a fair, dispassionate, and 
impartial hearing on both sides, you shall not stop the commerce of 
the country; you shall not stop the United States mails.” 

This property owner has a right to preserve the status until it can 
be ascertained whether there lias in fact been an attempt to tax not 
only revenue from local business but from interstate commerce, 
because the Supreme Court of the United States has said that inter¬ 
state commerce can not be taxed by the States. 

In Oklahoma the road I represent and other roads had exactly 
that situation within the past three months, where the state auditor 
was about to issue his warrant to the sheriff under which the sheriff 
would have legal protection to seize the engines and cars of the rail¬ 
road companies, if we did not have the right and did not exercise 
that right, to go before the district judge and say “protect us from 
this seizure”—which he did—because of a decision of the United 
States Supreme Court in a recent case. 

If we had not the right, if we had to go, as under this bill, to St. 
Paul, Cheyenne, Leavenworth, or St. Louis, engines might have been 
seized, cars stopped, and business for the time being impeded and 
the carriage of the mails interfered with. 

Certainly you will hesitate long, I submit, before you will give your 
official approval to an act that will not give adequate protection in 
cases of that character. 

Senator Overman. Where are the headquarters of your road? 

Mr. Latiirop. At Topeka, Kans. The company is chartered under 
the laws of the State of Kansas, having simply its local superintendents 
and agents in the State of Oklahoma. In Oklahoma it is a foreign 


30 


FEDERAL INJUNCTIONS. 


corporation, not a local corporation at all, whose business extends 
over ten States and Territories, its tonnage going all oyer the country 
and, through the port of Galveston, Tex., on its own line, to all parts 
of the civilized world. And yet that law was so drafted that not only 
the revenue from local business, which was the only revenue which 
they had a right to tax, but all revenue received by the railroad in 
Oklahoma was taxed, whether it came from local or interstate busi¬ 
ness, without any distinction. 

Senator Overman. How long would it have taken you to get an 
injunction against that, under this particular bill? 

Mr. Lathrop. I do not know, Senator. If the court had been in 
session in St. Paul—the court of appeals holds a session there begin¬ 
ning in May and running into the summer, having cases every day— 
it might be that between the adjournments of court we might have 
enlisted the attention of the judges. Or they might have been in 
St. Louis. Or the judges might have been separated. In the sum¬ 
mer time one judge may go abroad, another may go to New England 
on his farm, another may be on the Pacific coast. The necessity for 
an application may happen at any season of the year. If you have 
to gather up two or three circuit judges or two circuit judges and a 
district judge, you can not tell, it might amount to a denial of justice. 

Sometimes you might get immediate action. But suppose they 
are not off on their vacation, but are writing opinions somewhere, 
one in St. Paul, one in Cheyenne, one somewhere else. You can not 
get relief from one. You have got to get three—and a majority of 
those must agree to the order. The question has been raised as to 
whether under the bill the judges must be together when the applica¬ 
tion for a restraining order is presented, or whether they can act 
on it separately. 

Senator Overman. What is your construction of it? Do you 
think that? 

Mr. Lathrop. Well, I do not know. I confess I should have 
thought, if the question had not been raised, that, for instance, if 
you and Senator Long and I were circuit judges, counsel could take 
an application to you and get your approval, and then go to Mr. Long 
and get his approval, and then bring it to me and get my approval. 

Before the question came up I thought probably that was what 
you could do. But, one of the lawyers in writing on this subject, 
a very astute lawyer by the way, the general counsel of this company, 
now in New York, Mr. Walker I). Hines, when it was suggested to 
him that successive applications could be made without assembling 
the judges, stated that he did not agree that that was the proper 
construction of the bill. The bill says: 

Whenever such application, as aforesaid, is presented to a circuit judge he shall 
immediately call to his assistance— 

Now, ordinarily, that would mean that you must summon them 
to where you are if you want assistance. For instance, if you were 
holding court in your State, and you wanted assistance, you would 
summon a judge to the place where you were holding court. Other¬ 
wise it would hardly seem to me to be proper phraseology to say “he 
shall immediately call to his assistance.” You want the advice, 
you want the aid, the help, the assistance of those two other judges, 
one circuit judge and one district judge or another circuit judge, to 


FEDERAL INJUNCTIONS. 


31 


discuss the matter with them, the question being, “ Shall we grant a 
restraining order or deny it?” That is what “aid” means, and that 
is what “assistance” means. You get the benefit of the views of 
the other two men. They present their views and you present yours, 
and out of the joint presentation you get a result either of the ma¬ 
jority or of all three. So that it would certainly seem to me that it 
would be legitimate matter of debate, at any rate—that calling judges 
to your “assistance” would mean that they would have to come to 
you, and that action by the judges could not be taken separately. 
In that event they are not assisting you. You are acting inde¬ 
pendently and you are invoking the separate views of the other two 
judges as to whether there should be a restraining order granted 
prior to the application for the temporary injunction. 

The bill says: 

“Said application shall not be heard and determined until five 
days’ notice of the hearing has been given to the governor and 
attorney-general of the State and such other persons as may be defend¬ 
ants in the suit: Provided , That if a majority of said judges”— 

That would seem to convey the idea that the three judges are sit¬ 
ting together and that they have heard this application for a tempo¬ 
rary injunction. They have been called to the “assistance” of the 
first circuit judge. A showing has been made by the suitor, who 
says: “We can not wait for five days until the governor or attorney- 
general comes in. Nobody is bound to account to us if we lose our 
property in the meantime.” 

The bill says: 

“That if a majority of said judges are of the opinion, at the time 
notice of said hearing is given as aforesaid, that irreparable loss and 
damage would result to the applicant unless a temporary restraining 
order, pending the period of the required notice, is granted, a majority 
of said judges may grant such order, but the same shall only remain 
in force until the hearing and determination of the application, upon 
due notice as aforesaid, has taken place.” 

Mr. Long. “May grant such order.” 

Mr. Lathrop. Yes. That is a very pertinent suggestion. They 
“may grant such order.” The majority of said judges called to the 
assistance of the first judge “may grant such order.” What order? 
After hearing what the suitor had to say, the majority of said judges, 
presumably acting together, may grant an order giving temporary 
relief. 

Now, I admit that an argument may be made on the other side as 
to the judges sitting separately. But that is a matter of legitimate 
debate, and if the bill is to be passed all doubt should be set at rest 
by a specific expression. If you are going to make the suitor go to 
St. Paul or St. Louis or Leavenworth—if he is obliged to go to St. 
Louis to get the approval of Judge Adams, and go to Cheyenne to 
get the approval of Judge Van Devanter, and go to St. Paul to get 
the approval of Judge Sanborn in the eighth circuit, and that may be 
what was in mind—I submit that whatever construction is placed 
upon the bill, it is putting an impediment in the way of the preserva¬ 
tion of property rights that ought not to be imposed under our system 
of jurisprudence. 

In the case of rate statutes, as I said, the shipper has his right of 
reparation if we charge too much. Under the tax statutes, if their 


32 


FEDERAL INJUNCTIONS. 


going into effect is arrested and the seizure of property is interfered 
with by the federal courts and it is decided that the statute is valid, 
we not only have to pay the tax, but we also have to pa}^ the penalty 
under the law. 

I am shortly to conclude, but before closing I want to say that 
whatever may have been your honor’s view at the time this legisla¬ 
tion was originally conceived—no matter what may have been the 
public temper then—when in your judgment it was for the interest 
of the public, in order to allay popular excitement, that at least two 
out of three judges should agree on a temporary injunction, arresting 
the going into effect of a state statute, I submit that no such public 
emergency exists now. 

Senator Overman. I am glad to say that it does not exist now, 
but might it not occur again? 

Mr. Lathrop. I think not, because after the case of ex parte 
Young was decided, and the North Carolina case was decided—after 
it was sharply brought to the attention of the American people in 
those recent cases that the Constitution and laws of the United 
States were just as much the laws of the State as were state statutes, 
and that where they came in conflict the Constitution of the United 
States was the supreme law of the land, the right-thinking people 
acknowledged it, public clamor subsided, the insistence upon drastic 
legislation, confiscatory legislation, passed away. 

And now it seems to me that the passage of such a bill as this would 
be a legislative recognition by the National Congress of the right of 
the people to pass ill-considered legislation in response to public 
clamor, legislation whose enforcement can no longer be arrested by a 
single federal judge, exercising a jurisdiction which, as I have said, 
has existed without legislative impediment for more than three- 
quarters of a century. 

And whether that public clamor is liable to arise or not I submit 
that with the acknowledgment of the National Congress and every 
intelligent citizen that the Constitution and laws of the United States 
are the supreme law of the land and are operative in even" State 
without regard to state lines, this committee of lawyers of the Senate 
and the like body in the House of Representatives should not give 
their sanction to an affront upon the federal judges and to a recog¬ 
nition upon the statute books of the justice of the attack which has 
been made upon them. 

In any event if public sentiment or your idea of public dut}^ makes 
it necessary, in your judgment, that some such legislation should be 
passed, it seems to me that we are certainly entitled in the first in¬ 
stance to have the bill so amended that the granting of temporary 
restraining orders by district judges, in cases of emergency, without 
notice, should be authorized where irreparable injury would otherwise 
result, such order to remain in effect until the hearing and determi¬ 
nation of the application for a temporary injunction. By that course 
nobody is injured. The shipper in rate cases is protected by his 
right of reparation; the State is protected in its tax cases, because 
if the state tax is held valid penalties accrue and can be enforced 
against the property. On the other hand, if unconstitutional statutes 
can not be restrained from enforcement irreparable injury will result 
in many cases and loss incurred which can not be recovered from the 
State or the individual. 


FEDERAL INJUNCTIONS. 


33 


Provision should also be made for the assembling of the judges 
within a definite time. That is to say, if the application for a tem¬ 
porary injunction must be submitted to three judges, the law should 
provide that they should be assembled within a reasonably short 
time, so that the rights of the parties may be promptly considered 
and the necessary orders obtained after hearing. 

Another amendment, it seems to me, if there is to be any legisla¬ 
tion of this sort, should be that the district judge who should sit with 
the two circuit judges (and I think one district judge should sit with 
them) should be a district judge of the State which passed the law 
whose validity is being challenged. The district judges are there in 
each community. They are men to whom the Senate of the United 
States has given a certificate of character by confirming them. As 
I have said and repeated, they are men of the highest character and 
standing at the bar, many of them coming from the supreme bench 
of their respective States. They are familiar with local conditions 
and familiar with the history of legislation in their particular States, 
and they, of all people, are those who should be called to the assist¬ 
ance of the circuit judges in order that the circuit judges may be 
enlightened as to local conditions and local legislation. 

Senator Overman. Is there any such provision as that in the pro¬ 
posed bill submitted by Colonel Thom? 

Mr. Latiirop. No, sir; there is not. It contains a provision 
requiring that any judge can issue a restraining order in the first 
instance, whether district judge, circuit judge, or associate justice 
of the Supreme Court. We did not wish to encumber the bill. And 
that is rather my individual view perhaps than that of the other 
gentlemen concerned in the bill. But I think it is well worthy of 
consideration—that there should be a district judge sitting with the 
circuit judges, and that that district judge should be a district judge 
of the State where the controversy arose. 

As I have said, the bill proposed by Mr. Thom meets my views, 
aside from that suggestion of an amendment that the district judge 
should be from the State where the controversy arose, because the 
bill provides that any judge, district judge, circuit judge, or associate 
justice of the Supreme Court (any one to whom the bill is presented, 
properly verified and supported by the necessar}^ affidavit), if con¬ 
vinced that irreparable injury will be done, should have a right to 
preserve the status quo—simply to prevent irrecoverable loss being 
sustained, irreparable injury being inflicted, where the rights of the 
shipper in the one case (as in a rate case) and where a right of the State 
(as in a tax case) are adequately protected. The shipper would be 
protected from excessive rates by his right of reparation, and the 
State would have the right to recover a penalty for a tax which the 
courts of last resort say was lawfully imposed. 

But it does seem to me that, taking our National Government as 
it is constituted, recognizing that our greatest protection in times of 
clamor has been, is, and will be the judiciary of our country, the 
Congress of the United States can not afford to dignify popular clamor 
by enacting into law a reflection upon the judges of the courts of the 
United States and throwing in the way of the administration of 
justice impediments that ought not to be imposed. 

Senator Overman. I am much obliged to you, Mr. Lathrop, for 
the presentation of this important question which you have made 

26589—10-3 


34 


FEDERAL INJUNCTIONS. 


here and which will be on record and in print for the use of the Com¬ 
mittee on the Judiciary. 

(The subcommitte then adjourned until Saturday, January 29, 
1910, at 3 p. m., at which time another adjournment was taken until 
Monday, January 31, at 3 p. m.) 


Committee on the Judiciary, 

United States Senate, 

Monday, January 31, 1910 . 

The subcommittee met at 3 p. m. Present, Senator Overman. 

ARGUMENT OF HON. CHESTER I. LONG, OF MEDICINE 
LODGE, KANS. 

Mr. Long. I represent a committee selected by the bankers of 
Kansas to test the constitutionality of the bank guaranty law of that 
State. 1 am one of the counsel retained by that committee to con¬ 
duct that litigation. Several suits have been brought in the federal 
court in Kansas, and temporary injunctions have been obtained 
against certain state officers. It may be necessary to bring other 
suits in the future, and the experience we have had in that litigation 
has impressed me and the committee with the belief that this bill 
is unwise legislation. 

It is well to observe that the bill is demanded because of what fol¬ 
lowed certain legislation enacted by a number of States some four or 
five years ago. For several years efforts had been made to amend 
the interstate-commerce act, giving more power to the commission. 
That legislation was enacted after a great deal of discussion through¬ 
out the country and in Congress, on June 29, 1906, and was known 
as the Hepburn law. It related only, of course, to the regulation of 
interstate commerce. Following that legislation and the discussion 
and agitation of the question the legislatures of many States (in the 
West and South) passed laws to regulate intrastate commerce. Such 
laws were passed in Minnesota, North Carolina, and other Western 
and Southern States. The experience of the States prior to that 
time in enacting railroad-rate legislation had not been satisfactory. 
A number of such laws had been declared unconstitutional by the 
Supreme Court of the United States. And so it was that in the 
enactment of the laws in 1907 there was an attempt made by certain 
provisions in them to deter or prevent a resort to the federal courts 
to have them declared unconstitutional. 

They contained severe penalties and provided for imprisonment 
of the officers and employees who failed to comply with their pro¬ 
visions. 

Whatever may have been the purpose of those responsible for the 
enactment of these laws, it is sufficient to say that they all met a 
common fate and were declared invalid by the Supreme Court of the 
United States in the case of Ex parte Young (209 U. S., 123). 

It was determined in that case that these laws, by reason of the 
provisions for extreme penalties and severe punishments, were 
unconstitutional and void and were intended to prevent a judicial 
review of the sufficiency of the rates. Other efforts have been made 
to prevent recourse to the federal courts to test the constitutionality 



FEDERAL INJUNCTIONS. 


35 


of state laws. Proceedings have been brought in state courts so as to 
give the state courts jurisdiction first upon the theory that when a 
federal court found that a state court had assumed jurisdiction then 
the federal court would not take jurisdiction of the case. 

I have had some, recent experience myself in the litigation to which 
I have referred that has impressed me very forcibly with the fact that 
there is a disposition abroad to prevent recourse to the federal courts. 
I am at this time a defendant in an undisposed-of case in the supreme 
court of Kansas that was brought by the attorney-general of that 
State to test the bank guaranty law of Kansas, and prevent if pos¬ 
sible, a resort in the first instance to the federal court to determine 
its validit}’. 

But all these various plans and devices to give the state courts ex¬ 
clusive jurisdiction of cases enjoining state officers have failed and the 
federal courts are still open to litigants who come within the juris¬ 
diction vested in those courts. 

After failing in these efforts resort is now had to this proposed 
legislation, hoping that through Congress a result may be obtained 
that they have not been able to obtain in any other way. 

Senator Overman. There is no such intention with regard to this 
bill. 

Mr. Long. I am not speaking of the purpose of the author of the 
bill. 

Senator Overman. I have had no conference with anybody what¬ 
ever about it. 

Mr. Long. 1 am speaking of those who will support this measure 
and to whom it will most strongly appeal. Your purpose in the bill, 
as I understood from the statement you made a few days ago, was 
to relieve a single federal judge from the embarrassment that might 
result from declaring a law of a State unconstitutional and invalid, 
your purpose being to divide the responsibility so that it would not 
rest on a single federal judge but would be divided among three. 

Senator Overman. If you argue that it was a device on the part 
of the States to keep cases out of the federal court, let me ask you 
how the State of North Carolina could have got into the federal 
court with that case? It was a State case. 

Mr. Long. In cases of this character diverse citizenship is not nec¬ 
essary. In a case raising the constitutionality of a state statute on 
the ground that it contravenes the Constitution of the United States, 
the person bringing the suit need not be a citizen of another State. 

Senator Overman. Why could not such cases be heard in a state 
court? Your idea, as I understand, was that it was a device of the 
State to keep the foreign corporation from going into the federal 
court. How could that have been possible? 

Mr. Long. It does not apply to foreign corporations only. Any 
person who alleges that the statute contravenes the Constitution of 
the United States has a right to sue in a federal court, though he be 
a citizen of the State in which the suit is brought. 

Senator Overman. The question could as well be settled in a 
state court. 

Mr. Long. A person should have a right to go into the federal 
court. 

Senator Overman. I think the state judges are as honest as the 
federal judges. 


36 


FEDERAL INJUNCTIONS. 


Mr. Long. That may be; but it is in the interest of justice to have 
these questions finally decided by the Supreme Court of the United 
States as soon as possible. 

Senator Overman. They can go to the Supreme Court and get 
that result as well by a writ of error. 

Mr. Long. They can not. 

Senator Overman. Yvhynot? 

Mr. Long. There is an appeal from the state court to the supreme 
court of the State. Then a writ of error lies from the supreme court 
of the State to the Supreme Court of the United States. When a 
suit is brought in the United States circuit court raising the con¬ 
stitutionality of a state statute on the ground that it contravenes the 
Constitution of the United States, a direct appeal from the final decree 
may be taken to the Supreme Court of the United States. In the 
first instance } T ou have three courts with the delays incident to three 
hearings. In the second there are two courts. There is a great 
saving of time and there are other differences. 

Those who are interested in upholding the statute of the State 
believe they have certain advantages in the state courts. 

Senator Overman. I do not think you should try to make any 
reflections on the author of this bill when he has had in view the direct 
o *' P Tate. 



Senator Overman. You implied that one of its objects was to 
deprive the people of the protection of the Supreme Court of the 
United States. 

Mr. Long. The result of this bill will be to partially close the federal 
courts and interfere with and impede litigation in those courts. 

Senator Overman. It is very well to talk about the results, but so 
far as concerns the purpose of the bill there was no such purpose as 
you have in mind. 

Mr. Long. I understand that your purpose in the bill w r as to divide 
the responsibility of the federal judges, so that a single federal judge 
might not have imposed upon him the responsibility of declaring a 
statute of his State unconstitutional. 

Senator Overman. The trouble that w r e had in North Carolina 
amounted almost to a revolution, and my idea w^as that if three judges 
would act on a great constitutional question the feelings of the people 
would not be so aroused. It was for the purpose of allaying prejudice 
and not to arouse more prejudice that the bill was presented—pri¬ 
marily to allay the prejudice which arose in my State. 

Mr. Long. That being the purpose, I w r ant to call your attention 
to the results that will follow^ this legislation. The federal judges 
themselves might welcome this legislation, because it certainly is not 
a pleasant duty to be compelled to decide that an act is unconstitu¬ 
tional after it has been passed by the legislature and approved by the 
governor. But, be that as it may, the courts, as stated in the Young- 
case, are charged with that responsibility, and they can not evade it. 

I wish to call your attention to the statement in the Young case, 
taken from an earlier decision of the United States Supreme Court by 
Chief Justice Marshall: 

“It is most true that this court will not take jurisdiction if it should 
not; but it is equally true that it must take jurisdiction if it should. 
The judiciary cannot, as the legislature may, avoid a measure because 


FEDERAL INJUNCTIONS. 


37 


it approaches the confines of the Constitution. We can not pass it by 
because it is doubtful. With whatever doubts, with whatever diffi¬ 
culties, a case may be attended, we must decide it if it be brought 
before us. We have no more right to decline the exercise of juris¬ 
diction which is given than to usurp that which is not given. The one 
or the other would be treason to the Constitution. Questions may 
occur which we would gladly avoid, but we can not avoid them. All 
we can do is to exercise our best judgment and conscientiously per¬ 
form our duty.’’ 

That is the position, I assume, of federal judges generally in regard 
to the question of limiting their jurisdiction. I do not ask that this 
jurisdiction be retained in the interest of the judges themselves, but 
in the interest of litigants in these courts who have rights that should 
not be invaded. 

If this bill becomes a law, I wish to call your attention to its effects 
in the eighth circuit, where I live. That circuit comprises 12 
States and 1 Territory. It extends from the Canadian line on the 
north to Texas and Louisiana on the south; from the Mississippi 
River on the east to beyond the summit of the Rocky Mountains on 
the west. In that circuit there are four circuit judges. Those 
judges are now almost entirely occupied with their duties in holding 
the circuit court of appeals. One of those judges—Judge Hook—lives 
at Leavenworth, Kans. lie is hardty ever there. He has held the 
circuit court in our State only once or twice since his appointment as 
circuit judge seven years ago. Another judge lives at Cheyenne, 
Wyo., another at St. Paul, Minn., and the fourth at St. Louis, Mo. 

Those judges spend their time almost entirely either at St. Louis, 
Mo., or at St. Paul, Minn., engaged in appellate work. If this bill 
becomes a law, it will be necessary for litigants in Kansas to go either 
to St. Louis or to St. Paul to present an application of this kind. 
It would be necessary for persons living in Utah to go across the 
States of Colorado, Kansas, and Missouri to St. Louis, or still farther, 
to St. Paul, in order to present such an application. After the appli¬ 
cation is presented it would be necessary to assemble three judges 
and have the hearing either at one of the places named, or the judges 
would be compelled to leave their appellate work and go to ^the 
State. The district judge who lives in the State in which the con¬ 
troversy arose would not necessarily be one of the judges who heard 
the application. He would be only one of the three when called in 
by the circuit judge to whom the application was made. 

Something was said the other day about the hardship on the repre¬ 
sentatives of railroad corporations who were compelled to make such 
applications. If it is a hardship on them, it is a greater hardship on 
persons and on other corporations who have not the facilities which 
they have for travel without expense. It is a hardship on any per¬ 
son desiring to go into a federal court with questions of this kind to 
have the bill passed. 

From time immemorial—for three-quarters of a century—the 
district judge has sat in the circuit court, and since the organization 
of the court of appeals the circuit courts in our circuit are held almost 
exclusively by the district judges. If this bill becomes a law, a single 
district judge sitting in his own court would still have a right to de¬ 
prive a citizen of his life or liberty. Sitting as a district judge, he 
would have the right to settle great estates in bankruptcy. Sitting 


38 


FEDERAL INJUNCTIONS. 


in the circuit court, he would have the right to declare unconstitu¬ 
tional a law of Congress. He would possess the power to appoint 
receivers, to grant injunctions in other cases, and the only power 
taken from him would be that of restraining a state officer from en¬ 
forcing a state statute. In that respect alone the district judge 
would be held not sufficiently qualified or able to pass on the questions 
involved in such a case. 

Is there anything in the enactment of a state law that makes it so 
sacred? Is it enacted with more care and deliberation, that it should 
have different treatment from a law of Congress? 

It is somewhat difficult to say just what course should be pursued 
in regard to this present bill. It has been reported to the Senate. 
It is now upon the Senate Calendar. It is not before the committee, 
but an arrangement has been made for this hearing with the under¬ 
standing that the full committee shall reconsider the bill and report 
to the Senate either that the bill be passed in its present form or that 
certain amendments shall be made to it. 

I think the bill is wrong in principle. I think the bill should not 
be passed at all. But if there is to be legislation on this subject I 
think the substitute referred to is preferable to this bill. 1 think the 
best plan to pursue is to enact no legislation at all. Leave the 
federal courts with their present jurisdiction in relation to these 
matters. If that is not possible, then the substitute is not as bad a 
proposition as the pending bill. 

The most extreme proposition would be for Congress to abolish 
the federal courts or reduce the number of districts. That of 
course, is not thought of. The result will be in a measure to deter 
litigants from going into the federal courts. I think there can be no 
question but that such a result will follow. If that be true, it is a 
departure by Congress from the policy which has been pursued by 
Congress since the foundation of the Government. 

What has been the policy oh Congress in relation to the federal 
courts? It has been to bring them nearer to the people. It has 
been to make them more accessible to those who had a right to use 
them. It has not been to restrict them or to make them hard of 
access. Twenty years ago the people hesitated about going into 
the federal courts for the reason that the docket of the Supreme 
Court was overcrowded so that it was almost impossible to get a 
final determination of a case. What did Congress do? It created 
the United States circuit court of appeals, where appeals might be 
taken in most cases from the district and circuit courts, leaving only 
to the Supreme Court of the United States appeals where constitu¬ 
tional questions were involved and a few other classes of cases 

Senator Overman. More than a hundred years ago they provided 
that no injunction should be granted to prevent the execution of a 
state law. 

Mr. Long. What was the effect of the legislation creating the cir¬ 
cuit court of appeals in each circuit? The result was to enable the 
Supreme Court of the United States to clear its docket, and thus get 
a quicker consideration of suits brought to that court. And the 
result of that was to increase litigation in the federal courts. 

The same policy of Congress is shown in the increase of the number 
of districts. States have been divided into two and sometimes 
three districts for the purpose of bringing the federal courts nearer 
to the litigants. 


FEDERAL INJUNCTIONS. 


39 


Additional judges have been appointed without dividing the dis¬ 
tricts in order that cases might be tried more quickly with two judges 
than with one. Divisions have been made in the different districts. 
In my State the federal courts were formerly held at only two 
places. Now federal courts in that State may be held at six places. 
The policy on the part of Congress for a hundred and twenty years 
has been to bring the federal courts nearer to the people, to make 
them accessible, to arrange it so that persons who had litigation 
properly brought in these courts could resort to them with as little 
expense as possible. 

The proposition contained in this bill is restrictive. It will deter 
people from going into these courts, because of their inaccessibility, 
because of the difficulty which will be experienced in operation of tne 
machinery provided in the bill. 

It is more difficult to get two judges to hear a suit than one; still 
more difficult to obtain three judges than two. So it is that by the 
provisions of this bill the result will be to deter litigants from going 
into the federal courts. It will be difficult to get a hearing. Con¬ 
gress in the bill is called upon to discriminate against its own courts. 

These are some of the objections I have to the bill in its present 
form. The objections also apply to the substitute that has been 
suggested, but not to the degree that it does to the bill in its present 
form. 

The wise course to pursue in this matter is to uphold the federal 
courts and retain their present jurisdiction. Let the present powers 
of district and circuit judges be left unimpaired in dealing with the 
statutes of the States. 

(The subcommittee then adjourned until Thursday, February 3, at 
3 p. m.) 


Committee on the Judiciary, 

United States Senate, 
Thursday , February 3 , 1910. 

The committee met at 3 p. m. 

Present: Senator Overman. 

f 

ARGUMENT OF JAMES A. EMERY, ESQ. 


Mr. Emery. I ask that a copy of Senate bill 3724, to which my 
remarks are addressed, be spread upon this record. 

(The bill is as follows:) 

[S. 3724, Sixty-first Congress, second session.] 

“A BILL Regulating injunctions and the practice of the district and circuit courts 
of the United States. 

“ Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, That no temporary 
or interlocutory injunction or temporary restraining order or decree 
suspending or‘restraining the enforcement, operation, or execution 
of any statute of any State by restraining the action of any officer of 
such State in the enforcement or execution of such statute shall be 
issued or granted by any circuit or district court of the United States 



40 


FEDERAL INJUNCTIONS. 


or by any judge or justice thereof upon the ground of unconstitu¬ 
tionality of the statute, unless the application for the same shall be 
presented to a circuit judge and shall be heard and determined, 
upon issue made and proof taken bv affidavit or otherwise, by three 
judges, of whom two shall be circuit judges and the third may be 
either a circuit or a district judge, and unless a majority of said 
three judges shall concur in granting such application. Whenever 
such application, as aforesaid, is presented to a circuit judge he shall 
immediately call to his assistance, to hear and determine the appli¬ 
cation, one circuit judge and one district judge or another circuit 
judge. Said application shall not be heard and determined until 
five days’ notice of the hearing has been given to the governor and 
attorney-general of the State and such other persons as may be 
defendants in the suit: Provided , That if a majority of said judges 
are of the opinion at the time notice of said hearing is given as afore¬ 
said, that irreparable loss and damage would result to the applicant 
unless a temporary restraining order, pending the period of the re- 
quired notice, is granted, a majority of said judges may grant such 
order, but the same shall only remain in force until the hearing and 
determination of the application, upon due notice as aforesaid, has 
taken place. That an appeal may be taken directly to the Supreme 
Court of the United States from any order or decree granting or 
denying, after notice and hearing, a temporary or interlocutory 
injunction or. restraining order in such case; and the hearing of such 
appeal shall take precedence over all other cases except those of a 
similar character and criminal cases.” 

Mr. Emery. In opposition to this bill I represent protestants of a 
character entirely different from those who have heretofore appeared. 
I present the protest and objection of a great number of American 
business men and manufacturers, members of the National Associa¬ 
tion of Manufacturers, and some 225 commercial, mercantile, and 
industrial organizations, doing business in many States of the Union, 
typical representatives of the great middle class of American mer¬ 
chants and manufacturers who employ the vast body of salesmen, 
mechanics, and laborers who support the structure of American indus¬ 
try. The National Association of Manufacturers alone in its con¬ 
stituent units represents an investment of approximately ten billions 
of dollars, and its members employ in the neighborhood of two 
millions of men. 

Senator Overman. Do these organizations include what are known 
as the trusts? 

Mr. Emery. No; you will perceive by an examination of the list 
of organizations and associations represented, which I will file with 
the clerk of the committee, that 1 speak for independent manufac¬ 
turers, the local trade and commercial organizations representing 
merchants, manufacturers, and commercial agents of innumerable 
cities. 

The interest of this great constituency in this bill proceeds from a 
very deep-seated concern for the preservation of the full power of 
the equity arm of the judiciary, and we are no less apprehensive of 
the immediate and direct effect of this measure than its indirect and 
remote consequence—that serious danger which flows from the estab¬ 
lishment of far-reaching precedents. In our complex commercial 
and industrial system prevention is more important than cure ; pre- 


FEDERAL INJUNCTIONS. 


41 


ventive justice almost more essential than corrective or compensatory 
law. The citizen engaged in industry and commerce must therefore 
view with alarm a proposal which not only makes it difficult, and 
under some conditions practically impossible, to obtain speedy and 
adequate protection against trespass of state officers acting under 
authority of invalid legislation, but establishes a precedent for inter¬ 
posing obstructions to the speedy application of equitable remedies 
in other fields of action. 

This feeling is by no means confined to laymen. The most emi¬ 
nent minds on the bench and at the bar have frequently emphasized 
the necessity of preserving the equity power in its fullness and pro¬ 
tecting its exercise against the hasty and crippling restrictions of 
ill-advised though well-intentioned legislation. 

Addressing himself to this very subject, Mr. Justice Brewer, of the 
Supreme Court of the United States, during an address delivered in 
Brooklyn, N. Y., November 23, 1909, used this emphatic language: 

‘ ‘Government by injunction has been an object of easy denunci¬ 
ation. So far from restricting this power, there never was a time 
when its restricted and Vigorous exercise was worth more to the 
nation and for the best interests of all. As population becomes more 
dense, as business interests multiply and crowd each other, the 
restraining power ol a court of equity is of far greater importance 
than the punishing power of a court of criminal law. 

“The best scientific thought of the day is along the lines of pre¬ 
vention rather than those of cure. We aim to stay the spread of 
epidemics rather than permit them to run their course, and attend 
solely to the work of curing the sick. And shall it be said of the law, 
which claims to be the perfection of reason and to express the highest 
thought of the day, that it no longer aims to prevent the wrong, but 
limits its action to the matter of punishment? 

“To take away the equitable power of restraining wrong is a step 
backward toward barbarism rather than forward toward a higher 
civilization. * * * Courts make mistakes in granting injunc¬ 

tions. So they do in other orders and decrees; but shall the judicial 
power be taken away because of their occasional mistakes? The 
argument would lead to the total abolition of the judicial function.” 

In 1895, noting with prophetic foresight certain critical tendencies 
of the hour, the President, then Judge Taft, thus addressed the Amer¬ 
ican Bar Association: 

“It will not be surprising if the storm of abuse heaped upon the 
federal courts, and the political strength of popular groups whose 
plans of social reform have met obstructions in those tribunals, shall 
lead to serious effort, through legislation, to cut down their juris¬ 
diction and cripple their efficiency. If this comes, then the respon¬ 
sibility for its effects, whether good or bad, must be not only with 
those who urged the change, but also with those who did not strive 
to resist its coming.” 

That serious warning is no less applicable to legislation of this 
character than to demands made at that time and continued in this 
day by forces seeking to destroy the efficiency of judicial protection, 
that they might free their illegal acts from the restraints of the 
courts. 

As I understand it, this bill substantially provides that no officer of 
a State shall be temporarily restrained from carrying into effect a 


42 


FEDERAL INJUNCTIONS. 


legislative enactment unless the application for the injunction shall 
be presented to a circuit judge and be heard and determined upon 
issue made and proof taken by three judges, of whom two shall be 
circuit judges and the third may be either a circuit or a district 
judge. A majority of said three judges must concur to grant such 
application. 

Before any judicial action may be had on the application, the cir¬ 
cuit judge to whom it is addressed must convene to act with him in 
hearing and determining it, either two other circuit judges or a cir¬ 
cuit and a district judge, after five days’ notice having been given to 
the governor and attorney-general of the State and such other per¬ 
sons as may be defendants in the suit. 

But should a majority of the judges at the time notice of the ap¬ 
plication is given believe that irreparable loss and damage will result 
to the applicant, unless a temporary restraining order issues pending 
the hearing of the application, a majority of the judges may grant 
such order, which, however, shall remain in force only until the hear¬ 
ing and determination of the application. 

In response to the criticism of those whb have preceded me in this 
discussion, certain changes in the language of the bill have been made, 
but they do not substantially alter it or modify its purpose. This 
measure is not by its language confined to that narrow class of ques¬ 
tions which have arisen in controversies between citizens and state 
officers, in which it has been a delicate question as to whether or not 
suit was actually being brought against the State in violation of the 
eleventh amendment to the Constitution. The procedure of this bill 
must be followed, even though a state officer is about to inflict irrepa¬ 
rable damage by enforcement of any enactment of the State, however 
obviously invalid upon its face, and however serious may be the con¬ 
sequences of the officer’s irresponsible and unauthorized action. 
Under such circumstances I need not demonstrate to you, sir, the 
right of a citizen to his constitutional guaranty of protection. In our 
dual form of government we have not only provided for the protection 
of the citizen against the encroachment of his fellows, but we have 
likewise given a safeguard against that which is trespass by a political 
agent of the State when he acts in excess of or in contradiction with 
his delegated authority. As the Supreme Court put it, with clearness 
and force, as the State “can act and speak only by law, whatever 
it does say and do must be lawful.” And, therefore, when officers 
act without valid authority, it is “the mere wrong and trespass of 
individuals who falsely speak and act in its name.” (Poindexters. 
Greenhow, 114 U. S., 290.) 

In a series of great decisions from Osborne v. The United States 
to Ex parte Young, our Supreme Court has settled beyond contro¬ 
versy that when the State is not an actual party to the record, and 
the judgment in the suit can not take the State’s property or fasten 
liens upon it or direct the disposition of funds in its treasury, or 
compel the State, indirectly, by controlling its officers, to perform 
any contract, or pay any debt, or to govern the exercise of any dis¬ 
cretion vested in any officer in the execution of a valid statute, the 
State is not a real party, and the proceedings are not held to be a 
suit against the State. I believe, sir, that an examination of the 
entire record of those delicate, yet not to be avoided, controversies 
between citizens asserting their rights and state officers executing 


FEDERAL INJUNCTIONS. 


43 


invalid legislation will show to the satisfaction of any impartial mind 
that the federal judiciary, in the language of the great John Marshall 
to the Philadelphia bar, “has never sought to enlarge the judicial 
power beyond its proper bounds, nor feared to carry it to the fullest 
extent that duty required/’ 

But indeed, as he also said, in an oft-quoted case, “the judiciary 
may not take jurisdiction if they can not, but may not avoid it if 
they should.” 

Now, sir, as industry and commerce have expanded to their 
present vast proportions with the growth of our common country, 
they have done so under the persisting and necessary assurance of 
speedy and secure protection to the rights of those engaged in sus¬ 
taining the industry of this nation. That security is not only essential 
to the maintenance of their own rights and privileges, their confidence 
and happiness, but that of those countless thousands whose remuner¬ 
ative employment and consequent peace and comfort is dependent 
upon the continuance of every remedy, or its equivalent, essential 
to the protection of fundamental personal and property rights. 
Every day federal and state courts within their respective jurisdictions 
are petitioned to exercise those necessary powers witli which experi¬ 
ence makes even the laymen intelligently familiar. He relies upon 
their continuance, be he employer or employee, an investor or a 
director of investments, the head of a corporation, directing its affairs, 
or a workman, dependent to a large degree for steady employment 
upon the continued security and prosperity of his employer’s business. 
Every day federal courts, in the exercise of their jurisdiction, are 
providing protection against trespass, nuisances, restraints of trade, 
unfair competition, infringement upon patents, copyrights, trade¬ 
marks, trade symbols, and all the various devices by which rights 
and privileges are threatened with injury, which equity can alone 
prevent. 

But, sir, time brings changes. As commerce and industry become 
more extensive and complex new occasions arise for the application 
of ancient remedies. Our courts present the continuous spectacle 
of old principles applied to new sets of facts, and while in the past 
the protection guaranteed in our organic law against the unauthorized 
interference of the people’s agents with the fundamental rights of the 
people themselves has been continuously invoked in the course of 
controversies that have constantly arisen during one hundred and 
thirty years of national life, the more frequent exercise of the various 
regulative powers of the State has more frequently raised contro¬ 
versies between the citizens and the officers of the State in the last 
few years. 

The volume of legislation has enormously increased in state and 
national legislatures. During the Sixtieth Congress approximately 
40,000 bills were introduced in the House and Senate, and exclusive 
of private bills and resolutions 326 became laws. In 1909, 45,330 
bills were introduced in the legislatures of 39 States, and 12,508 of 
these bills became law. In Great Britain during the same period 
547 bills were introduced into Parliament and 239 enacted. Thus, 
in Great Britain one bill was introduced into Parliament for approx¬ 
imately every 77,000 inhabitants, in the United States one for every 
600. Here one bill was enacted into law for practically every 6,000 
inhabitants, in Great Britain one for every 175,000. Doubtless the 


44 


FEDERAL INJUNCTIONS. 


difference in our form of government, the complexity and extent of 
our industrial, commercial, political, and social activity, makes regu¬ 
lation more necessary here than abroad; but be that as it may, the 
activity of our legislatures in prescribing new rules of conduct makes 
it more important than ever, with all due regard and respect for their 
powers, that the rights of the citizen shall be carefully protected bv 
the very system of judicial checks which he has himself prescribed. 
For it is but natural, in the proportionately small amount of time 
that can be given in our brief legislative sessions to such numerous 
and varied proposals, covering so many departments of activity, 
with which legislators can not become sufficiently familiar, that error 
should creep into enactments and that, in response to his honest 
desires, the needs of the moment, perhaps the clamors of the hour, 
the hurried lawmaker may fall into error of the most serious character. 

If, sir, I have dwelt at length upon these considerations, aroused by 
a study of this measure, I do so to suggest the ground of this apprehen¬ 
sion which rests in the mind of the business world in contemplating 
the very radical proposals of this measure. 

I think, sir, I apprehend quite clearly your motive in presenting 
this bill as distinct from the purpose of the measure itself. You have 
stated quite clearly that you believe the resentment aroused in your 
State, and in other States of the Union by the decisions of federal 
judges invalidating an act of the state legislature, would be calmed 
if three judges, rather than one, made the decision. But, sir, I sub¬ 
mit that however laudable your motive, the measure is effectuated 
b} r means subject to the most serious objection, for, first, the meas¬ 
ure results in the most invidious discrimination against federal judges. 
If the bill be motived by a desire to cause three judges to join in all 
decisions invalidating state legislation, the measure is most incom¬ 
plete, for questions affecting the validity or constitutionality of 
state legislation would still be decided by one federal judge on appli¬ 
cation for writs of habeas corpus or mandate. In fact, the enforce¬ 
ment of this bill would present the curious spectacle of one federal 
judge possessing the power to invalidate an act of the state legislature, 
while three federal judges would be essential to protect a citizen by 
injunction against the enforcement of the law which one of the 
number might have declared unconstitutional. 

If this bill were law one judge of an inferior state court could 
restrain a state officer in the execution of an enactment of his State; 
the same judge could likewise restrain the execution of the act of the 
Congress, while it would require three federal judges to give to a citi¬ 
zen of the State or of the United States the same constitutional pro¬ 
tection given by the judge of the inferior state court. And while 
the single federal judge might still invalidate an act of Congress, or 
restrain its execution, lie would be powerless to give equitable protec¬ 
tion against the enforcement of the statute of a State, although upon 
its face it might not only be a plain violation of the constitutional 
right of the citizen, but might have been so declared by a court of 
the United States. For, sir, under the language of this bill, even 
though the legislative act of a State were invalidated by the circuit 
bench or by the Supreme Court of the United States itself, an attempt 
to enforce it at a future time, or to enforce its civil provisions if it 
had been invalidated upon a criminal proceeding, could not be 
restrained by a single federal judge. 


FEDERAL INJUNCTIONS. 45 

Senator Overman. Do you suppose that an attorney-general would 
attempt to enforce any act declared unconstitutional by a court? 

Mr. Emery. They have done so. 

Senator Overman. By the circuit court of the United States or the 
court of appeals? 

Mr. Emery. [ will say that state officers have attempted to enforce 
the civil provisions of acts which have been declared unconstitutional 
in criminal proceedings. That they have revived acts remaining upon 
statute books but invalidated in an earlier day; and, finally, I will 
offer you instances where a State has persistently endeavored to 
enforce legislation against a particular class of persons, although its 
purpose and principle has been repeatedly and severely condemned 
in judicial proceedings. Furthermore, I submit that with human 
nature as it is, and the experience which we have had of the extent to 
which popular excitement and prejudice may find expression in, if 
you please, ephemeral legislation, is it wise to cripple a protective 
power which our past tells us is necessary and without which the 
future may offer unpleasant spectacles of foolish prejudice and bitter 
judgment expressing itself at the expense of rights left in the midst of 
evanescent outbursts of feeling without adequate means of protection. 

Senator Overman. There is no limitation in this bill on the right 
of injunction. 

Mr. Emery. No; but it is made more difficult of obtainment. 

Senator Overman. But there is nothing in this bill to prevent an 
injunction from being obtained? 

Mr. Emery. No; but it could be had only by complying with the 
provisions of this bill, and in that connection let me diverge a 
moment from the more fundamental objections which I am consider¬ 
ing to call your attention to the practical difficulty of complying with 
its requirements. 

To obtain even a temporary restraining order, it is necessary for the 
circuit judge to whom application is made to call two other circuit 
judges or a circuit and district judge to his aid. It has been sug¬ 
gested that the bill does not require three judges to sit together upon 
an application for a restraining order; that, in fact, consecutive 
hearings may be had, the attorney for the petitioner proceeding from 
one judge to the other until he secures the assent of the majority of 
the three. Without dealing with the obstacles this presents of 
securing a speedy remedy, to which a plaintiff may be entitled, I can 
not see how, in view of the express purpose of the bill, this interpreta¬ 
tion can be given to its plain intent and language. The ver}^ object 
of the bill is to secure a meeting of three judicial minds. If this be 
not so, the very motive of the bill is not realized. But however that 
may be, the practical difficulties of obtaining the simultaneous or 
consecutive consent of two circuit judges and one district judge to a 
temporary order would, under existing circumstances, present such 
insuperable difficulties as to seem to amount to a practical denial of 
due process of law. To say the least, it is placing continuous obstacles 
in the pathway of the petitioner for relief and it reverses our whole 
theory and tendency in remedial legislation. It has been the glory 
of our legal system that we have sought to bring justice to the suitor’s 
door and place at his very hand remedies required for the protection 
of his rights, while this measure would send the suitor rambling over 
circuits thousands of miles in extent in a vain endeavor to find his 


46 


FEDERAL INJUNCTIONS. 


remedy before the injury against which lie sought protection had 
resulted in irreparable damage. 

There are to-day some thirty circuit and eighty-odd district judges. 
Circuit judges are almost exclusively engaged in appellate work, and 
if in compliance with this measure two of them in any circuit sat in 
the original hearing they would by that act disqualify themselves 
from appellate consideration of the same case. As a matter of fact, 
the circuit judges rarely sit in circuit courts, and I doubt that in any 
city or State of the Union—other than New York—it would be possible 
to promptly get two circuit judges prepared to perform the duty 
devolving upon them under this bill. On the contrary, even in New 
York, they might properly be engaged in appellate duty that would 
prevent or greatly delay them in hearing the application for a remedy 
perhaps sadly needed. 

To illustrate the difficulty of obtaining the assistance of the presence 
of circuit judges required by this bill, I need only call your attention 
to the following condition in the circuit courts during the calendar 
year of 1908: District judges held the circuit exclusively in the States 
of Arkansas, Colorado, Florida, Idaho, Iowa, Kansas, Kentucky, 
Mississippi, Montana, Nebraska, Nevada, New Jersey, North Dakota, 
Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Ver¬ 
mont, Wyoming, and Washington. 

In the eastern and western districts of Michigan the circuit court 
was held by a circuit judge but one day; in Connecticut but eight 
days; in New Hampshire but two days; in the northern, eastern, and 
western districts of New York but one day; in the eastern and south¬ 
ern districts of Illinois, not at all. 

In your own State of North Carolina there are two districts, the 
eastern and western. The eastern district held at Raleigh, Newbern, 
Wilmington, Elizabeth City, exclusively by district judges; at Wash¬ 
ington twice by circuit judges. In the western district at Greens¬ 
boro, Statesville, and Wilkesboro, exclusively by district judges. 

Out of seventeen thousand nine hundred and forty-six days on 
which circuit court was held, district judges held the court fifteen 
thousand seven hundred and seventy-one days, and in 25 districts 
circuit judges did not hold circuit court at all. 

To further illustrate the difficulties of practically complying with 
this bill, confine its application to, say, the ninth circuit, consisting 
of California, Oregon, Washington, Nevada, Idaho, Montana. A cir¬ 
cuit judge sits in Los Angeles, San Francisco, or Portland. A suitor 
or his attorney in Idaho or Nevada seeking equitable relief must 
travel hundreds or even thousands of miles, part of the time with 
only primitive means of transit. If this bill were interpreted to give 
a right of consecutive hearings upon his application for a temporal 
restraint, he would visit each of these widely separated judges, or 
two of them, and having, after argument with each and a district 
judge, obtained his order he would set out again upon his long jour¬ 
ney and begin the work of service. If it be held that the presence 
of three judges is required in one place, then the difficulties are mul¬ 
tiplied beyond description. Prior claims of cases under considera¬ 
tion or adjudication, and the still greater difficulties that are pre¬ 
sented when one or more judges of the circuit are ill or absent upon 
a vacation, make the conditions demanded for the securing of relief 


FEDERAL INJUNCTIONS. 


47 


almost impossible of realization. Yet, sir, in the constitution of every 
State of the Union you will find in the bill of rights a recognition of 
and a guaranty of speedy relief to the suitor in his need. 

Senator Overman. “ Without denial or delay ?” 

Mr. Emery. Yes; and you will recollect that one of the funda¬ 
mental complaints of our forefathers—corrected in Magna Charta— 
was that the courts followed the king, and made it possible only for 
suitors of considerable means to travel after him and secure the king’s 
justice. Hence it was that in the early pages of our legal system our 
forefathers wrote and have always maintained the means of affording 
justice without delay in the locality in which there is occasion to 
obtain it. 

Now, sir, to return to more fundamental objections to the principle 
of this bill: I find that I can not agree that it is wise or expedient or 
necessary to meet any popular clamor based upon erroneous con¬ 
ceptions of the relations of States to the National Government b}^ 
legislative discrimination against judicial officers of the United 
States. The constitutions of most of our States find a place in their 
bill of rights for a clear recognition of the superior obligation of the 
Constitution of the United States and the laws and treaties made 
thereunder. No State, sir, has more clearly and forcibly stated this 
principle than your own. In the constitutions of North Carolina, 
both that of 1868 and 1876, without change of language, I find the 
following splendid declaration in sections 3 and 5 in article 1 of the 
declaration of rights: 

“Sec. 3. That the people of this State have the inherent, sole, 
and exclusive right of regulating the internal government and police 
thereof, and of altering and abolishing their constitution and form 
of government whenever it may be necessary for their safety and 
happiness; but every such right should be exercised in pursuance 
of law and consistently with the Constitution of the United States. 

“Sec. 5 . That every citizen of this State owes paramount allegi¬ 
ance to the Constitution and Government of the United States, 
and that no law or ordinance of the State in contravention or sub¬ 
version thereof can have any binding force.” 

It would be difficult to more accurately express the proper rela¬ 
tion pending between the States and the Federal Government, and 
no more important duty devolves upon, the representatives of the 
people than not merely to enforce that relation, but by precept 
and example to give effect to these vital principles of our dual system. 

Senator Overman. Have you any means of ascertaining or have 
you ever had occasion to ascertain how many times relief has been 
sought against invalid state legislation? 

Mr. Emery. Do you mean in the whole course of our national life? 

Senator Overman. Y"es; have you any idea of the number of 
times ? 

Mr. Emery. I could not say definitely, but I feel certain I should 
not overestimate if I said hundreds of times. 

Senator Overman. It is very rare in my State. 

Mr. Emery. It has been comparatively frequent in some other 
States. 

I noticed yesterday in an article in the American Magazine, by 
William Allen White, the statement was made that at the meeting 


48 


FEDERAL INJUNCTIONS. 


of the attorneys-general of the various States of the Union it was 
reported that there were 106 proceedings pending of the character 
we are discussing. 

Senator Overman. Did not the attorneys-general pass a resolution 
asking for some such relief as this ? 

Mr. Emery. 1 have no recollection of a request of that character. 

Senator Overman. 1 understood they did so in convention. 

Mr. Emery. I do not know that they did; but, sir, even if they 
had, I submit that the people of the United States, in the language 
of their own Constitution, had provided against the adoption of such 
a suggestion by requiring that they be provided with proper pro¬ 
tection against the invalid acts of their own agents. 

Now, sir, if I may return to the point from which I was diverted, 
let me call to your attention that excitement, even resentment and 
indignation resulting from the invalidation of legislation by the 
courts, is by no means a new thing. 

Senator Overman. It is not a very common thing. 

Mr. Emery. [ think I can show you, sir, that it existed during the 
earliest part of our national history, and even exhibited itself during 
the Revolution from collision between colonial courts and legislatures, 
and it continued sporadically up to the adoption of the Constitution 
and during all the early period of our national life, while our people 
were adjusting themselves to their new government. 

It is in this connection, however, that I desire to make a clear dis¬ 
tinction between those controversies that arose in the early part of 
our history between coordinate departments of the Government and 
those which proceed to-day between a superior and inferior juris¬ 
diction. The question presented by controversies between colonial 
legislatures and their courts and between the legislative and judicial 
department, either of the States or of the Federal Government, were 
controversies between coordinate branches of the Government, and 
it was but natural, under a new system like ours, and in the political 
heat of those early times, bitter resentment should have followed the 
first assertion by the Supreme Court of the United States of its right 
in obedience to a paramount constitution to invalidate an act of 
Congress in conflict with the higher law. The same difficulty appears 
when the legislatures of the States resented the early decisions of 
state courts declaring unconstitutional certain legislation. But, 
during all of this period, the people and the States recognized and 
acquiesced in the right of the federal courts to invalidate the act of a 
state legislature in conflict with the paramount constitution. 

During that period of controversy the supreme courts of the nation 
and the States laid down those principles upon which our dual system 
of government securely rests, yet bitter popular antagonism followed 
many of the decisions. 

In Trevett v. Weeden, the Rhode Island supreme court, in 1780, 
having sustained the terms of the Rhode Island charter as against an 
act of the legislature, they were summoned by resolution of the Rhode 
Island legislature to attend “and assign the reasons and grounds of 
the aforesaid.” In New York, in 1784, tremendous excitement was 
aroused by the alleged setting aside of a legislative act of the colony 
in the case of Rutgers v. Wadding ton, in a case in which Alexander 
Hamilton was attorney for the defendant. A great public meeting 
was held in New York and an address published to the people of the 


FEDERAL INJUNCTIONS. 49 

States declaring it “absurd that there should be a power in the courts 
whereby they might control the supreme legislative powers.” 

In the preface of Chipman’s Vermont Reports, the reporter writing 
in 1824, says of the yermont constitution of 1777: "No idea was 
entertained that the judiciary had any power to inquire into the 
constitutionality of acts of the legislature.” In 1814 the Vermont 
supreme court first declared an act of the state legislature void. 

In Swift’s “ System of the Laws of Connecticut,” published in 
1795, the author, afterwards chief justice of the supreme court of 
Connecticut, argued strongly and bitterly against any power in the 
judiciary to invalidate a legislative enactment. As*late as 1807-8 
judges were impeached by the legislature of Ohio for holding acts 
of that body void. Cooley in his Constitutional Limitations says 
“ there are at least two cases in American judicial history where 
judges have been impeached as criminals for refusing to enforce 
invalid legislative enactments.” 

Yet, sir, during all of this period when the people of the new nation 
were adjusting themselves to their peculiarly original scheme of 
government nothing akin to the plan of this bill was proposed as a 
means of lessening popular feeling excited in these very conflicts 
arising from the jealousies of coordinate authority. Mr. Justice 
Gibson, on the supreme bench of Pennsylvania, as late as 1825 denied 
the power of a state court to invalidate an act of the state legislature, 
because the constitution of the State did not expressly grant such 
power, but in the same opinion he declared his belief in the existence 
and necessity of the power given to courts of the United States by 
the second clause of article 7 of the Constitution invalidating state 
legislation in conflict with the paramount authority of the National 
Constitution. 

In the constitutional convention, while there was much discussion 
at times as to whether or not the federal judiciary would or should 
possess the power to invalidate an act of Congress, the convention 
contains no record of any disagreement of the necessity of empow¬ 
ering the judiciary to invalidate state legislation in conflict with the 
Federal Constitution. Indeed, the records of the constitutional 
convention disclose a variety of measures offered to obtain this 
result and disagreement only as to which was the most effective 
means. The language of .the second clause of article 6 of the Con¬ 
stitution displays in its original form the thought of the convention 
on this subject by declaring that “legislative acts of the United States 
and treaties are the supreme law of the respective States and bind 
the judges thereof as against their own laws.” The committee on 
style of the constitutional convention changed the phrase “law of the 
respective States” to “law of the land.” 

This very brief review seems to me should be sufficient to make clear 
the distinction between bitterness aroused by decisions of the courts 
of the United States invalidating the acts of a coordinate legislature 
and the continuous acceptance of the necessity of vindicating the 
paramount authority of the National Government by invalidating 
state legislative acts in conflict with its superior authority. I call 
attention to this because it must be evident that if it is necessary to 
perpetuate the power to invalidate the unconstitutional acts of the 
State, it must be equally necessary to preserve in their fullness the 
26589—10-4 


50 


FEDERAL INJUNCTIONS. 


remedies essential to protect the citizen in his liberty and property 
against the enforcement of the invalid acts of the State. Without 
the preservation of a practical remedy by injunction, the State is 
easily the most dangerous of all trespassers with which the citizen 
can come in contact when its officers undertake to enforce its invalid 
acts. And, sir, constitutional guaranties are for the protection of 
minorities and individuals in the face of majorities who, by their 
very power, exhibit their ability to take care of themselves. Let 
us consider a moment the practical situation presented by the use 
of an injunction to restrain a state officer executing its enactment. 
Let it be said in the first place that federal judges have rarely used 
this power without confirmation of their action by the appellate court. 
Mr. Thom presented a strong statement on that subject, and the 
Supreme Court of the United States, in the case of Ex parte Young, 
with evident reference to their experience of the exercise of the 
injunctive power of the lower courts in these matters, said: “No 
injunction ought to be granted unless in a case reasonably free from 
doubt. We think such rule is and will be followed by all the judges 
of the federal courts.' ’ 

Now, sir, in a few cases where the judge may err in the issuance of 
his restraining order, what is the result? The injunction is dissolved 
on appeal and the State proceeds to enforce its law. Either bond has 
been given securing the recovery of any questioned tax, or in any 
other form of regulative legislation the State, through the machinery 
of its legal department, acts against the corporation or citizen and 
gives its will effect. The execution of the law has merely been de¬ 
layed. The very legal proceedings had have made easier its future 
enforcement because of the judicial interpretation. On the contrary, 
if criminal or civil provisions of invalid legislation are enforced and 
property seized or persons imprisoned and then the act of the State 
is invalidated, the sovereign State can not be sued for the recovery of 
property or moneys improperly taken and the damage to injured 
individuals can not be recovered, as experience demonstrates by 
actions brought against the irresponsible officers who enforced the 
law. As for those persons who may have suffered imprisonment, 
neither the State nor individuals can restore to them the value of 
their lost liberty and besmirched reputation. The very range and 
variety of the State’s activities are the best reason for retaining these 
equitable remedies against the errors of the State, the practical value 
of which experience has so keenly demonstrated. 

The records of our circuit and supreme courts bear the continuous 
evidence of the fact that the present procedure alone can supply with 
speed an adequate remedy to which the citizen is entitled in the pro¬ 
tection of personal and property rights. Take up at hazard the 
Federal Reporter for the past two years, run your eye over the cases 
in which the injunctive power has been exercised in controversies 
with state officers, observe the cases in which States and municipal¬ 
ities have attempted to evade or destroy their contracts, to violate 
the patent rights of individuals by infringing upon their protected 
ideas, of errors arising from the hasty use of the power of eminent 
domain, of the taxing power, of the police power, of ill-considered 
changes in practice and procedure, depriving suitors of their remedies 
and rights of action. It is true in some of these cases the acts of the 
State will have been tested in criminal proceedings involving writs 


FEDERAL INJUNCTIONS. 


51 


of habeas corpus, but, sir, if the reason for this legislation is to be 
found in increasing the number of the judges required to supply 
efficient remedies against unauthorized acts of state officers, the pre¬ 
cedent created in this bill will soon be urgently pressed to use in other 
forms of procedure, and by here obstructing the pathway to the court 
you will have encouraged the placing of other legislative obstructions 
between the citizen and judicial protection. 

What volumes could be written upon the splendid protection 
which federal courts have given against state legislation invading the 
most sacred privileges of the citizen under the stimulus of feeling 
aroused by local conditions creating prejudice against a class or a 
condition and drafting into legislation the excesses of local opinion 
against which constitutional safeguards were provided with such 
prophetic foresight . Observe during the early thirties of the last cen¬ 
tury that great series of cases which arose during the bad times that 
afflicted the then border States of Kentucky and Tennessee. They, 
under the pressure of local political influences, went to such limits in 
the protection of the debtor classes against their creditors as to again 
and again invalidate the obligation of contracts and subject themselves 
to the sharp rebuke of the Supreme Court. 

I am sure you can yourself well remember in the period that fol¬ 
lowed our great civil struggle a time in which the defeated soldiers 
of the Confederacy and their sympathizers found themselves deprived 
of property and profession and almost deprived of the services and 
consolation of the priest of their faith in the unhappy circumstances 
immediately following the rebellion; when Missouri, West Virginia, 
and other border States, and even Congress itself, in the bitterness of 
the time, enacted legislation between which and its victims the 
federal courts stood as the sole shield between the men lately in 
rebellion and the destruction of their dearest rights by bills of at¬ 
tainder. 

But, sir, I could fill volumes with the evidences of the necessity for 
retaining in its fullness this great power that can alone successfully 
protect the citizen against the errors and mistakes of hasty, ill-con¬ 
sidered, or prejudiced legislation. 

Let me give you two more practical examples from the many that 
could be adduced, and I shall conclude. The first illustrates the 
extremities into which a State can readily force property rights; the 
second will illustrate the persistency with which a prevailing local 
opinion will seek to invade through legislation the rights of an alien 
minority, finding their sole protection in the federal courts against 
bitter racial agitation. In 1875 a statute of the State of New York, 
and a somewhat similar one in Louisiana, were brought to the atten¬ 
tion of the United States Supreme Court in the case of Henderson v. 
The Mayor of New York (92 U. S.). At about the same time there a 
similar action was instituted by the North German Lloyd Steamship 
Company against a Louisiana official and decided substantially in the 
same case. The New York statute provided that any steamer arriv¬ 
ing in New York must, before discharging its passengers, supply the 
mayor of that city with certain information in regard to all or them, 
and, through its master, must give for each alien landed a bond in 
favor of the mayor of New York for the sum of $400, the bond to have 
two good and sufficient sureties to guarantee against the alien landed 
becoming a public charge on the State. The filing of the bond could 


52 


FEDERAL INJUNCTIONS. 


be avoided by paying $1.50 head tax to the State of New York. tor 
failure to comply with this act a penalty of $500 was assessed against 
the vessel for each alien landed. The board of immigration commis¬ 
sioners of the State, subject to the order of the mayor, were authorized 
to bring an action for the recovery of the penalties, which were made 
a lien against the vessel. 

In the Henderson case a vessel with 400 or 500 passengers subject 
to these penalties failed to comply with the law, and as the immigra¬ 
tion commissioners were about to begin an action for the collection 
of approximately $250,000 penalties involved, the shipowners en¬ 
joined the mayor and commissioners, through the circuit court of 
the United States, from beginning the action, on the ground of the 
invalidity of the law, and the Supreme Court of the United States, 
to which it went on appeal, declared the act unconstitutional, as an 
attempt on the part of the State of New York to regulate interstate 
commerce. 

Had it not been possible to protect the shipowners in this case 
against the beginning of an action which might have held his ship in 
port and deprived the owners of its use, it is evident that irreparable 
damage would have been suffered of a nature and extent so serious 
as to require no amplification. 

Referring now to the second instance suggested, I have no doubt, 
sir, that you are familiar in a general way with the history of the 
agitation against the Chinese in the State of California. It had 
grown so strong in the middle of the seventies that language was 
expressly placed in the new constitution of the State for the purpose 
of depriving Chinese of opportunity for employment. You will find 
the condition very clearly outlined in the case of In re Tiburcio Par¬ 
rott (1 Fed., 484). This was an application for writ of habeas corpus 
by the president of a mining corporation, one Parrott, who had been 
arrested and charged with the violation of section 179 of the penal 
code of the State, which read as follows: 

‘‘Any corporation now existing or hereafter to be formed under the 
laws of this State that shall employ, directly or indirectly, in any 
capacity, any Chinese or Mongolian shall be guilty of a misdemeanor, 
and upon conviction thereof shall for the first offense be fined not less 
than rive hundred dollars nor more than five thousand dollars; and 
upon the second conviction shall, in addition to said penalty, forfeit 
its charter and franchise and all its corporate rights and privileges, 
and it shall be the duty of the attorney-general to take the necessary 
steps to enforce such forfeiture. This act shall take effect imme¬ 
diately.’ ’ 

This penal provision had been enacted to enforce a provision of 
the new state constitution requiring that corporations created under 
the laws of the State should not employ Chinese persons. There were 
at the time some 8,000 corporations in the State, and Chinese were 
extensively employed in a variety of capacities, and their rights in 
regard to residence and employment were fixed by the Burlingame 
treaty between this country and China. Comment seems to be 
unnecessary with regard to this legislation, and I shall only quote 
from a portion of the opinion of the court in granting the application 
for the writ and discharging Parrott: 

‘ ‘ It applies to all corporations formed under the laws of this State. 
If its provisions be enforced, a bank or a railroad company will lose 


FEDERAL INJUNCTIONS. 


53 


the right to employ a Chinese interpreter to enable it to communicate 
with Chinese with whom it does business. A hospital association 
would be unable to employ a Chinese servant to make known or 
administer to the wants of a Chinese patient, and even a society for 
the conversion of the heathen would not be allowed to employ a 
Chinese convert to interpret the gospel to Chinese neophytes.” 

But despite this decision the prejudice against the Chinese not 
only continued to exist, but to evidence itself by continuous attempts 
expressed in state and municipal legislation to discriminate against 
the Chinese residents in such a way as to force them to withdraw 
from the State, and that, you will observe, in the face of the clearest 
of treaty obligations. In the case In re Lee Sing (43 Fed., 361) you 
will perceive a further effort of this character in an endeavor to 
require by ordinance that all Chinese should live and do business in 
a certain restricted section of the city of San Francisco, it being made 
a misdemeanor for them to reside or do business elsewhere within the 
municipality. The effects of this legislation were thus described by 
the circuit judge in causing the discharge of Lee Sing from custody: 

“The obvious purpose of this order is to forcibly drive out a whole 
community of twenty-odd thousand people, old and young, male and 
female, citizens of the United States* born on the soil, and foreigners 
of the Chinese race, moral and immoral, good, bad, and indifferent, 
from a whole section of the city which they have inhabited, and in 
which they have carried on all kinds of business appropriate to a 
city, mercantile, manufacturing, and otherwise, for more than forty 
years. Many of them were born there, in their own houses, and are 
citizens of the United States entitled to all the rights and privileges 
under the Constitution and laws of the United States that are law¬ 
fully enjoyed by any other citizen of the United States.” 

Soon after this litigation an attempt was made to lodge in the 
board of supervisors of San Francisco a certain police power obvi¬ 
ously intended to be enforced with discrimination. The city of San 
Francisco enacted an ordinance requiring that no laundry should be 
conducted in a frame building without a permit from the board of 
supervisors. Upon the admitted state of facts, it was shown to the 
court that of 320 laundries in the city—a city, it is to be remembered, 
then practically of wooden structures—260 laundries were conducted 
by Chinese. It was admitted that practically all the white laundries 
were given permits to conduct their business in wooden structures, 
while the same privilege was universally denied to the Chinese. 
Thus you perceive an endeavor was made to provide an exercise of 
the police power that would be valid upon its face but discriminating 
in its enforcement. Nearly all the Chinese conducting laundries in 
the city of San Francisco were arrested under this ordinance. On 
an application for writ of habeas corpus to the supreme court of 
California the ordinance was sustained and the case went to the 
Supreme Court of the United States on writ of error. Tick Wo v. 
Hopkins, sheriff (118 U. S., 356), and was there invalidated as a 
discriminating enforcement of police power in denial of treaty rights. 

Thus, sir, you perceive during a period of years a continuous 
attempt, because of strong local feeling, to destroy by ingenious 
legislative devices the treaty rights of a body of alien people. Very 
recently cases arose in the State of California because of like feeling 
against the Japanese, and you will recollect that it was for a time 


54 


FEDERAL INJUNCTIONS. 


feared that our peaceful relations with the Japanese Empire would be 
disturbed, and our Government itself appeared by counsel in pro¬ 
ceedings taken to vindicate the treaty rights of the Japanese. In all 
of these cases, particularly in the attack upon corporations of the 
State of California, employing Chinese, the forfeiture of corporate 
privileges and franchises would have damaged the property interests 
of their stockholders beyond computation, and had the attack upon 
the corporate rights of franchise holders taken a civil form, the injunc¬ 
tive processes of the federal courts would have alone supplied efficient 
protection. The evident influence exerted upon the state courts by 
the condition of popular feeling was evidenceu in the various proceed¬ 
ings which went to the Supreme Court of the United States after 
denial of relief in the state supreme court, and thus, sir, we are pre¬ 
sented with the most striking example of the absolute, practical 
necessity of retaining this necessary equitable power for the pro¬ 
tection of the citizen and the preservation of treaty rights of aliens, 
who, if in any period of popular excitement based upon racial preju¬ 
dice, were made in their persons or property the victims of antago¬ 
nistic state legislation, might be the means of forcing us into disastrous 
complications with foreign powers, if it did not bring us to the very 
verge of war. 

Finally, sir, let me ask you to consider that the right of equitable 
relief is just as sacred as the right of legal relief, that prevention of 
injury is more important than compensation for it, and that the 
attack upon person and property by the officer of a State possessing 
no valid authority for his action but having behind him the tre¬ 
mendous machinery of a sovereign power, is a far more serious assail¬ 
ant than any man or combination of men against whose assaults you 
intend to retain for the citizen the full equity power of intervention 
as it at present exists. 

In cases that have arisen in our States from time to time effort has 
been made to impair the equity power through alleged efforts to regu¬ 
late procedure which had the effect of invading and impairing the 
judicial power itself. In Wisconsin, Virginia, Mississippi, Arkansas, 
Michigan, and other States attempts have been made to compel a 
chancellor sitting in equity to accept the verdict of his advisory jury, 
to compel a court of equity to refrain from enforcing its orders and 
decrees in a proceeding for contempt until a jury had determined 
whether or not the contemnor be guilty of the violation of a judicial 
order charged. In all of these and similar cases courts have called 
our attention to the fact that the courts are alone the home of the 
judicial power, that courts possess powers which no legislature gave 
them and which no legislature can take from them, and as the supreme 
court of Michigan said in the case of Kalamazoo v. Circuit Judge (75 
Mich.): “The right to have equity controversies tried by equity 
methods is as sacred as the right of trial by jury.” 

I do not intend here and now at this late hour to enter into any 
technical discussion as to whether or not this bill under some interpre¬ 
tations given to it amounts to an attempt to create three courts in 
requiring the consecutive .judgment of three chancellors upon an 
allegation of threatened irreparable damage in a petition for injunctive 
relief, or whether a bill which would prevent a chancellor sitting in 
equity from issuing a temporary order to restrain the enforcement 


FEDERAL INJUNCTIONS. 


55 


of a statute which has been held by another court to be invalid or 
which is invalid on its face and threatens by its enforcement to work 
irreparable damage, is not in itself a denial of due process of law. 

Senator Overman. Has not Congress a right to deprive any of 
these courts outside of the Supreme Court of its equitable juris¬ 
diction ? 

Mr. Emery. It may deprive the court of jurisdiction, but it can 
not give it jurisdiction and at the same time deprive it of the essence 
of the judicial power in equity. 

Senator Overman. But these courts are the creatures of Congress, 
and Congress can abolish them. 

Mr. Emery. It is within the power of Congress ‘‘to ordain and 
establish” inferior courts, but their judicial power does not proceed 
from Congress, which merely defines their jurisdiction. In the sense 
that Congress provides the instrumentality for the exercise of the 
judicial power, it established the Supreme Court itself, because it 
not only named the number of judges which should constitute it, 
but supplied all the machinery through which they exercise their 
power. 

Senator Overman. You know we have created some courts here in 
Washington. 

Mr. Emery. Yes, but those are statutory courts in which the 
sovereign has permitted itself to be sued, and they derive their 
authority for the exercise of their powers from the statute of Congress 
creating them, and not-from the Constitution of the United States. 

Senator Overman. When I introduced my amendment to the rate 
bill, we had that question of jurisdiction up—the question of requir¬ 
ing notice—and I thought I would like to hear your view of it. 

Mr. Emery. You refer to the Spooner-Bailey controversy? 

Senator Overman. Yes. 

Mr. Emery. You will recollect the State of Pennsylvania v. The 
Wheeling and West Virginia Bridge Company (13 How.). In that 
decision the Supreme Court defined the source and nature of the 
equity powers of the courts of the United States, declaring the equity 
power and jurisdiction to be such as was exercised by the high courts 
of chancery of England at the time of the adoption of the Constitu¬ 
tion. This, said the court, may be called the “ common law of 
equity,” and you will recollect in that case that without any statutory 
authority the court took chancery jurisdiction and issued the injunc¬ 
tion requested. 

Senator Overman. You say the equity power is conferred upon the 
United States courts? 

Mr. Emery. Yes; by the Constitution. 

Senator Overman. By the statute? 

Mr. Emery. No. The constitutional provision is that the judicial 
powers of the United States are lodged in the Supreme Court and 
such inferior courts as Congress "may ordain and establish.” 

Senator Overman. That gives them equitable jurisdiction? 

Mr. Emery. I am distinguishing constitutional courts from statu¬ 
tory courts. 

Senator Overman. Is not every court a statutory court? 

Mr. Emery. In the sense that every inferior federal court has been 
established by an act of Congress it derives jurisdiction from the 


56 


FEDERAL INJUNCTIONS. 


statute establishing it, but the judicial power which it exercises within 
the jurisdiction defined flows from the Constitution and not from 
Congress. 

Senator Overman. Pardon me for interrupting you ? 

Mr. Emery. Certainly. I am glad of any interruption that clari¬ 
fies this discussion. 

Senator Overman. There are numerous decisions, are there not, in 
which the courts say that Congress has the right to limit jurisdiction? 

Mr. Emery. Certainly; but Congress may not invade the judicial 
power itself, and while it may be difficult to fix the exact limits within 
which Congress may exercise its power to fix procedure, it must be 
certain that any attempt ostensibly to regulate procedure which is 
intended, or has the effect, of impairing or damaging or trespassing 
upon or destroying the judicial power itself will be ipso facto invalid. 
You are, of course, familiar with the numerous cases in which a legis¬ 
lative act has been invalidated because of its invasion of the executive 
power on the one hand, or that of the judiciary on the other. 

Senator Overman. I think these powers should be preserved 
intact, but it is my own opinion that Congress has the power to limit 
the courts. 

Mr. Emery. I quite agree with you, sir, to the point where a regu¬ 
lation of procedure becomes a trespass upon the judicial power ; but, 
sir, even if it be granted that you possess the power to enact the pres¬ 
ent legislation, let me call your attention to the fact that nowhere in 
the history of the legislation of this country or that of England has any 
attempt ever been made to throw such ah obstruction as this in the 
pathway of equity intervention. On the contrary, it has been our 
constant endeavor to remove obstructions from the progress of the 
suitor seeking his remedy. The tendency of legislative opinion and 
action has been to make the courts easy of access and to preserve, by 
every remedy, the rights of the citizen against trespass from every 
direction. Our Constitution, with its delicate system of checks and 
balances, was created by a people jealous of their individual rights, 
who sought not only to preserve a just balance of power between 
national and local governments, but to provide themselves with that 
which existed in no other nation in the history of government, a judi¬ 
cial power able to protect the rights of the citizen against the exac¬ 
tions of government, not only against tyranny and usurpation of 
authority, but against the errors and well-intentioned mistakes of 
legislators, and experience has demonstrated that judicial interven¬ 
tion through the equity power has given efficient protection, and the 
only efficient protection obtainable, against trespass of the character 
indicated, and that, moreover, it is the safest, as it is the surest and 
least likely to be disturbed, check against the excitements of a local 
character, which are likely, under stress of intense feeling, to express 
themselves through political pressure brought in times of extreme 
local agitation to bear upon the legislatures of municipalities or States. 

Finally, sir, our whole theory of government rests for its successful 
perpetuation upon the preservation of the paramount authority of 
the Constitution over the action of the States. The vindication of 
that wonderful relationship is essential to the maintenance of our 
institutions. No act of Congress should give our people cause to 
regard our national courts as less the courts of the people than those 
of the States. No example here set should make them feel that the 


FEDERAL INJUNCTIONS. 


57 


Constitution and laws of the United States are any less their laws than 
the statutes of their respective States. As Justice Bradley finely put 
it in the conclusion of his great opinion in the case of Ex parte Siebold 
(100 U. S., 398), in meeting the very contention that supplies the 
philosophy beneath the resentment expressed against federal judicial 
invalidation of unconstitutional state legislation: “The doctrine laid 
down at the close of counsel's brief that the State and National Govern¬ 
ments are coordinate and altogether equal, on which this whole argu¬ 
ment indeed is based, are only partially true. 

“The true doctrine, as we perceive, is this: That while the States 
are really sovereign as to all matters which have not been granted to 
the jurisdiction and control of the United States, the Constitution and 
constitutional laws of the latter are, as we have already said, the 
supreme law of the land; and when they conflict with the laws of the 
State, they are of paramount authority and obligation. This is the 
fundamental principle on which the authority of the Constitution is 
based, and unless it be conceded in practice as well as in theory, the 
fabric of our institutions, as was contemplated by the founders, can 
not stand. The questions involved have respect not more to the 
autonomy and existence of the State than to the continued existence 
of the United States as a government to which every American citizen 
may look for security and protection in every part of the land." 

ARGUMENT OF HON. DANIEL DAVENPORT, OF BRIDGEPORT, CONN. 

Mr. Davenport. In order that the provisions of the proposed bill 
may be fresh in our minds during the discussion, I will read it, as it 
is quite short. 

A BILL Regulating injunctions and the practice of the district and circuit courts of 

the United States. 

Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled . That no temporary 
or interlocutory injunction or temporary restraining order, or decree 
suspending or restraining the action of any oflicer of such State in the 
enforcement or execution of such statute, shall be issued or granted 
by any circuit or district court of the United States or by any judge 
or justice thereof upon the ground of unconstitutionality of the stat¬ 
ute, unless the application for the same shall be presented to a circuit 
judge and shall be heard and determined, upon issue made and proof 
taken by affidavit or otherwise, by three judges, of whom two shall 
be circuit judges, arid the third may be either a circuit or a district 
judge, and unless a majority of said three judges shall concur in 
granting such application. Whenever such application, as aforesaid, 
is presented to a circuit judge he shall immediately call to his assist¬ 
ance, to hear and determine the application, one circuit judge and one 
district judge or another circuit judge. Said application shall not be 
heard and determined until five days’ notice of the hearing has been 
given to the governor and attorney-g'eneral of the State and such 
other persons as may be defendants in the suit: Provided , Lhat if a 
majority of said judges are of the opinion, at the time notice of said 
hearing is given as aforesaid, that irreparable loss and damage would 
result to the applicant unless a temporary restraining order, pending 
the period of the required notice, is granted, a majority of said judges 


58 


FEDERAL INJUNCTIONS. 


may grant such order, but the same shall only remain in force until 
the hearing and determination of the application, upon due notice as 
aforesaid, has taken place; that an appeal may be taken directly to the 
Supreme Court of the United States from any order or decree granting 
or denying, after notice of hearing, a temporary or interlocutory 
injunction or restraining order in such case, and the hearing of such 
appeal shall take precedence over all other cases except those of a 
similar character and criminal cases. 

It does not require an extensive knowledge of the judicial system of 
the United States to perceive that the obstacles to the issuance of tem¬ 
poral restraining orders and preliminary injunctions contemplated 
in this bill amount practically to the total deprivation of the prelim¬ 
inary injunctive remedy as a means to preserve the status quo in all 
cases brought to the circuit and district courts of the United States 
which require in any way a temporary restraint on the enforcement, 
operation, or execution by state officers of any state statute, however 
clear its invalidity may be or appear, by reason of its conflict with 
either the federal or state constitution. The federal judges are so few 
in number, so widely separated, and so fully occupied with the respon¬ 
sible duties of their office, that it is idle to expect that they can be got 
together in sufficient number, or soon enough, to afford that urgent 
preliminary relief, which is only to be granted bv courts of equity in 
cases of pressing emergency and of immediately threatened and irrep¬ 
arable damage. 

The bill has certain pecularities which at once arrest the attention. 
While it leaves the equity courts of 46 States with untrammeled 
power to stay temporarily the operation or execution of a state law by 
state officers, on the ground of its conflict with either the state or 
national constitution, it practically deprives the federal courts of that 
power. And while the state and federal courts are both to be allowed 
to stay^ temporarily the operation of an act of Congrsss enacted by the 
representatives of the whole people, if unconstitutional, the federal 
courts are to be deprived practically of the power to suspend tem¬ 
porarily the execution by a state officer of a state statute, enacted by 
the representatives of only a small part of the people on the ground 
of its unconstitutionality. And this, too, even though the state law 
and others just like it have already been declared void by the United 
States Supreme Court. This is truly a remarkable proposition. It 
indicates a degree of faith in the impecability and sanctity of state 
legislation greatly in contrast with that of the people who established 
the Constitution of the United States for their own protection and 
benefit. For one of the most noticeable things about that Constitu¬ 
tion is the consciousness it displays, in every part, of the people of 
the whole count7\y that the legislatures of the several States would be 
constantly passing all sorts of laws, which would be in conflict with it 
and with the real interests and rights of the nation and its citizens. 
To guard against this all sorts of restrictions, both express and im¬ 
plied, were placed upon state legislation. For instance, they were 
forbidden to grant titles of nobility, coin mone}^, omit bills of credit, 
make anything but gold or silver a legal tender in payment of debts, 
impose duties on imports and exports, pass bills of attainder, ex post 
facto laws, or laws impairing the obligation of contracts, or to regu¬ 
late interstate or foreign commerce by taxation or otherwise, or to 


FEDERAL INJUNCTIONS. 


59 


tax or otherwise obstruct the agencies and operations of the National 
Government, or to deprive any person of life, liberty, or property 
without due process of law, or to deny any person the equal protec¬ 
tion of the laws. And in order that these restrictions might be made 
effectual, the Constitution and laws of the United States were made 
the supreme law of the land, and even the judges of the state courts 
were to be bound thereby, and a federal judiciary was provided. 

The very proposition that the Federal Government shall deprive 
suitors in its courts of this familiar and ofttimes only means of pro¬ 
tection from irreparable injury, seems strange to one who believes in 
the principle laid down by Chief Justice Marshall in Marbury v. Madi¬ 
son (1 Cranch, 137), and sanctioned by all the great law writers before 
him and since, that 4 4 the very essence of civil liberty certainly consists 
in the right of every individual to claim the protection of the laws 
whenever he receives an injury. One of the first duties of govern¬ 
ment is to afford that protection.” 

I shall not, however, further enlarge upon that aspect of the matter. 
Perhaps it has been urged upon your attention by others. Indeed it 
is only too plainly apparent from the terms of the bill itself. What I 
desire to do, rather, is to point out to you the tremendous scope of the 
prohibitions of the bill, and their crippling effect upon the necessary 
functions of the federal judiciary, as an indispensable branch of the 
Federal Government, and an intimate part of the judicial system of 
the whole country. 

It is a principle of constitutional construction, laid down by Chief 
Justice Marshall in Sturges v. Crowninshield (I Wheat., 72), that 
44 whenever the terms in which a power is granted to Congress, or the 
nature of the power require that it should be exercised exclusively by 
Congress, the subject is as completely taken from the state legislatures 
as if they had been expressly forbidden to act on it.” 

In conformity with this principle it was long since decided in Martin 
v. Hunter’s Lessee (1 Wheat., 304) and in The Moses Taylor (4 Wall., 
411) that Congress has power to divest the courts of the States of 
jurisdiction over all subject-matters which are included within the 
constitutional grant of judicial power to the United States, or whose 
determination by the judicial power of the United States is necessary 
to the exercise by Congress of its constitutional power of legislation, 
and where Congress has expressed its will that, as to any particular 
subject-matter of federal cognizance, the jurisdiction of the courts of 
the United States shall be exclusive, the courts of the States can not 
take cognizance of such subject-matter. Of course, the Constitution 
having granted the power, and not having commanded Congress to 
exercise it, it is for Congress to determine when and to what extent it 
will exercise it. Therefore, the jurisdiction of the courts of the 
United States within the limits imposed by the Constitution, is either 
exclusive of or concurrent with that of the courts of the States, as 
Congress may from time to time determine. 

Now, Congress has seen fit in its wisdom wholly to withdraw from 
the cognizance of the state courts and to vest exclusively in the fed¬ 
eral courts jurisdiction over many subjects, including suits for penal¬ 
ties and forfeitures incurred under the laws of the United States; 
civil causes of admiralty and maritime jurisdiction; seizures under the 
laws of the United States on land or on waters not within admiralty or 


60 


FEDERAL INJUNCTIONS. 


maritime jurisdiction; cases arising under the patent-right or copy¬ 
right laws of the United States; all matters in proceedings in bank¬ 
ruptcy; all controversies of a civil nature, where a State is a part}^, 
except between a State and its citizens, or between a State and citizens 
of other States or aliens; and all suits or proceedings against ambassa¬ 
dors, or public ministers, or their domestics, or domestic servants, or 
against consuls or vice-consuls. , 

When Congress thus expressed its will that the courts of the United 
States should exercise exclusive jurisdiction over these subject-mat¬ 
ters, which are included within the constitutional grant of judicial 
power to the United States, the courts of the States could not there¬ 
after directly exercise jurisdiction over them, though they might indi¬ 
rectly and collaterally act upon them in a wa} T . 

Under this principle a state court can not take jurisdiction of a 
cause of admiralty cognizance, such as a proceeding in rem founded 
upon a contract for the transportation of passengers by sea, or upon a 
collision, or upon a contract of affreightment. A state court can not 
take jurisdiction of an action against a foreign consul. It can not take 
jurisdiction in patent causes, nor determine the validity of a patent or 
a question of infringement. The courts of the States can not issue 
injunctions before final decree, nor attachments on mesne process, 
against a national bank. A state court can not issue a mandamus to 
an officer of the United States, or try a federal officer for an act done 
by him in the discharge of his official duties, or by its process take in 
execution goods imported into a port of the United States, but not yet 
entered at the custom-house, for payment of duties to the United 
States, or goods which, having been seized for violation of the revenue 
laws of the United States, are in the custody of a marshal of the 
United States. Nor can a state court take jurisdiction of a suit to 
determine whether or not property has been rightfully forfeited under 
the laws of the United States, nor can it by injunction restrain the 
execution of a judgment of a court of the United States. A state 
court can not, under a state insolvent law, regulate the distribution of 
an insolvent national bank, or discharge a defendant held in custody 
under a capias ad satisfaciendum issued by a court of the United States, 
or replevin propertj^ taken in execution under a judgment of a court of 
the United States. Nor can attachment of a debt by the process of a 
state court, after the commencement of suit upon that debt in a court 
of the United States, bar the plaintiff’s recovery in that suit; nor can 
the pendency of state insolvent proceedings be set up as a bar to suits 
in courts of the United States brought by parties who are constitu¬ 
tionally entitled to sue therein. 

There is scarcely one of the above-named subjects of the exclusive 
jurisdiction of the federal courts in regard to which, at one time or 
another, void state statutes have not been enacted, and may not again 
be enacted, the immediate enforcement of which without temporary 
restraint would have worked irreparable injury to persons entitled to 
be protected therefrom. So it must be apparent to all that, through¬ 
out this vast field of litigation, thus wholly withdrawn by Congress 
from the state courts and vested in the federal courts the provisions of 
this bill would practically destroy the power of the circuit and district 
courts of the United States to preliminarily preserve the status quo of 
the subject-matter of the litigation whenever it was threatened by the 


FEDERAL INJUNCTIONS. 


61 


enforcement, operation, or execution of an unconstitutional state statute 
by a state officer; and since Congress has deprived the state courts of 
jurisdiction over such matters, the practical result of this bill in that 
respect would be to expose all the public and private interests of the 
people to the lawless action of state officers assuming to act under void 
laws of a state. The deplorable consequences of such a situation is 
apparent to everyone. The history of our country from 1789 to the 
present time is replete with instances where the most serious conse¬ 
quences to individuals as well as the public would have followed had 
not the federal courts possessed and exercised promptly the prelim¬ 
inary injunctive power which, under our system of laws, was vested 
nowhere else, and which it is the effect if not the purpose of this bill 
to destro}L 

Moreover, the Constitution extends the judicial power of the United 
States “ to controversies to which the United States shall be a party.” 
Heretofore the United States has always possessed the power, when¬ 
ever it found it necessary, to appear in its own courts and apply for 
and obtain the untrammeled aid of those courts by peaceful prelim¬ 
inary injunctions, to enable it to carry on its great operations in the 
public interest and for the public welfare, without resorting to the use 
of that force which it undoubtedly possesses. Speaking of the wisdom 
of this course, as pursued on a momentous occasion, the Supreme Court 
said in In re Debs Petitioner (158 U. S., 598), *‘ , the outcome attests 
the wisdom of the course pursued by the Government, and that it was 
well not to oppose force simply by force, but to invoke the jurisdiction 
and judgment of those tribunals to whom by the Constitution and the 
settled convictions of all citizens is committed the determination of 
questions of rightand wrong between individuals, masses, and States.” 
Much more is this true, if by resort to this peaceful temporary pre¬ 
ventive remed} 7 collisions between the representatives of the States and 
the nation may be avoided. 

But if this bill passes, the Government will be deprived, practically, 
of that peaceful remedy in any case, however important it may be, 
where its interests, rights, and duties, and the national welfare are 
imperiled by a threatened immediate enforcement of a void state 
statute by an irresponsible state officer. The language of Chief 
Justice Marshall in Osborne v. Bank of United States (9 Wheat., 738) 
seems here peculiarlv in point. Speaking of the denial of the consti¬ 
tutional power of federal courts, by a preliminary injunction, to stay 
the levy of a void state tax by a state auditor, that great jurist said: 

“A denial of jurisdiction forbids all inquiry into the nature of the 
case. It applies to all cases perfectly clear in themselves; the cases 
where the Government is in the exercise of its best established and 
most essential powers, as well as to those which may be deemed ques¬ 
tionable. It asserts that the agents of a State, alleging the authorit}^ 
of a law, void in itself because repugnant to the Constitution, may 
arrest the execution of anj^ law in the United States, it maintains 
that if a State shall impose a fine on any person employed in the exe¬ 
cution of any law of the United States it may levy that fine or penalty 
by a ministerial officer, without the sanction even of its own courts, 
and that the individual, though he perceives the approaching danger, 
can obtain no protection from the judicial department of the Govern¬ 
ment. The carrier of the mail, the collector of the revenue, the mar- 


62 


FEDERAL INJUNCTIONS. 


shal of a district, the recruiting officer, may all be inhibited under 
ruinous penalties from the performance of their respective duties; the 
warrant of a ministerial officer may authorize the collection of these 
penalties, and the person thus obstructed in the performance of his 
duties may indeed resort to his action for damages, after the infliction 
of the injury, but can not avail himself of the preventive justice of the 
nation to protect him in the performance of his duties. Each member 
of the Union is capable, at its will, of attacking the nation, of arresting 
its progress at every step, of acting vigorously and effectually in the 
execution of its designs, while the nation stands naked, stripped of its 
defensive armor, and incapable of shielding its agent or executing its 
laws otherwise than by proceedings which are to take place after the 
mischief is perpetrated, and which must often be ineffectual from the 
inability of the agent to make compensation.” 

The deplorable consequences thus asserted by the great Chief J ustice 
to be the result of a successful denial of the power of Congress under 
the Constitution to vest the preliminary injunctive power in the federal 
courts would equally follow in the train of a voluntary surrender of it. 



INDEX. 


Page. 


Davenport, Daniel, argument of. 57 

Emery, James A, argument of. 39 

Lathrop, Gardiner, argument of. 20 

Long, Chester I., argument of. 34 

Thom, Alfred P., argument of... 4 


63 

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